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Pascal & the Magisterium

By Paul J. Griffiths

May 4, 2020

“Magisterium” is a Latin word that designates, for Catholics, the church’s teaching authority, vested principally in its bishops. Grammatically, the word is a noun in the genitive plural and means, literally, “what belongs to teachers”—teacherly things, that is. In theological usage, the teacherly thing indicated most directly by “magisterium” is authority. Jesus had this, Scripture tells us: it was strikingly and surprisingly evident in his teaching, and he is referred to as “teacher” (magister) in Latin versions of Scripture. The church’s bishops, as Jesus’ inheritors in this respect, have it too.

Authority asks for submission, and when it’s recognized, submission ordinarily follows. When the state trooper’s blue lights flash in my rearview mirror, I pull over. That’s because she has authority and I recognize it. If I didn’t, I might ignore the flashing lights. That she does in fact have authority explains why, if I ignore those lights, things won’t go well for me in the short-term future. Authority is real: it belongs to those who have it whether it’s acknowledged or not. But for it to become active, it must be acknowledged, whether willingly (I pull over) or not (I’m forced off the road).

It’s a commonplace that teachers have authority. If you want to learn something from someone and you don’t recognize their authority to teach it to you, you won’t be able to learn it from them. This is most obvious when what you want to learn is technique: ordinarily, the teacher demonstrates the technique (the fingering that makes it possible to play the Goldberg Variations, or the best way to make a villanelle), and then you try it for yourself. If you don’t recognize the teacher’s authority by observing and imitating her demonstration of whatever it is you’re trying to learn, then she won’t be able to teach you. The authority of a teacher is ordinarily limited to its proper sphere. It’s not reasonable to expect your piano teacher to also instruct you in the proper use of a chainsaw, in rather the same way that it’s not reasonable to take the state trooper’s authority to extend to the establishment of foreign policy.

All this applies to the magisterium. It has its proper sphere, which is, roughly speaking, what belongs to Catholic faith and morals, with extensions into the governance of Catholic life by law. Its authority does not extend to instruction in the arts, or to empirically observable fact, or to mathematical truths. Generally, it also does not extend to questions of historical fact, or to politics, or to literature. If it does have anything to say about such questions, it’s because answers to them are understood to have an effect upon Catholic faith and morals. And mostly they don’t.

As with other kinds of authority, magisterial authority is effective only when it’s freely recognized, or when teachers can force recognition on those who’d rather not give it. Since most non-Catholics don’t recognize magisterial authority at all, and since the church’s teachers, unlike state troopers, have few means at their disposal to make them do so, magisterial authority is, by and large, effective only for Catholics. And it’s not always effective even for them, because sometimes they refuse to recognize it, and the bishops either can’t or don’t do what would be necessary to make them.

So here’s the picture, drastically simplified but accurate as far as it goes: the church’s bishops have authority to teach Catholics about what we Catholics should believe and how we should act. And that authority binds: we are to assent to, and act upon, these teachings. Because of the magisterium we can say, as the centurion said to Jesus, that we know what authority is and that we live our lives responsively to it. That is good knowledge to have, for all human life is lived, more or less, under authority, and it’s among the privileges of Catholic life for that condition to be explicit and theorized.

Pascal considered himself a faithful Catholic, and this was central to his self-conception.

But living a life under authority in this way comes with interesting difficulties, and with the help of Blaise Pascal (1623–1662), a peculiarly sharp thinker on this as on most other topics, I want to consider one of them. Suppose you’re a Catholic and that you take yourself to be bound by magisterial teaching: you’re aware of it and you take it seriously; you don’t shrug off difficulties in this sphere by replacing what the bishops teach with what seems good to you. Suppose, next, that a magisterial teaching is promulgated on a sharply delineated topic about which you take yourself to know a good deal. Suppose, further, that what the magisterium has to say about this topic is, so far as you can see, simply wrong. And suppose, lastly, that the situation of the church in your time and place makes silence on the matter seem to you either imprudent or improper. What do you do? Pascal was faced with just such a situation.

Today Pascal is mostly known for the Pensées, the title given in 1670 to the first publication of a collection of literary fragments left in disarray at his early death. These contain the outlines of an apologetic in favor of Catholic Christianity, a subtle and interesting understanding of the human condition with observations on death, boredom, amusement, the meaning of social and political life, and much more. The Pensées were widely read in the seventeenth century, as they have been ever since. Pascal also wrote a considerable quantity of polemical theology, mostly against the Jesuits, some of it published under a pseudonym during his lifetime. But during his life he was mostly known as a mathematician and scientist. He made contributions to the development of calculus, designed and built the first working calculating machine, planned the first mass-transit system in Paris, performed experiments that showed the possibility that a vacuum can exist—and much more. And since he died at thirty-nine, he managed to fit all this into a short career.

Pascal lived at perhaps the last moment in European history when it was halfway reasonable to think yourself capable of having significant expertise in every department of human knowledge. He doesn’t rival his younger contemporary Leibniz (1646–1716) in the range of his knowledge—who could?—but he makes Descartes (1596–1650), whom he met, and Spinoza (1632–1677) look positively provincial in their interests. But many people have great intellectual capacities. That alone wouldn’t make him memorable. Jacques-Bénigne Bossuet (1627–1704) was more of a polymath than Pascal, and vastly more learned. But Pascal could write with lucidity and force, and Bossuet, like most intellectuals, could not. Pascal, therefore, was read much more widely during his life, and has been ever since. The ability to write well, with lucidity, concision, wit, and force, is at least as important in intellectual life as the capacity to think, and since there is no profundity of thought that requires obscurity in writing, it’s surprising how many thinkers with important things to say haven’t been able to find clear language with which to say them. Pascal isn’t among them: his writings were and still are a stimulating pleasure to read.

Pascal considered himself a faithful Catholic, and this was central to his self-conception. Were he to have lost or abandoned his faith, he would have lost something as close to himself as his ability to write French or think mathematically. And so, when he found himself at odds with the magisterium, he took it seriously; and because he was the kind of man who wrote about whatever he took to be important, he wrote about this situation. In fact, he wrote a lot about it, over a period of more than ten years, which means that we have a good deal of material from his hand on which to draw.

Those who thought that the results of Pascal’s experiments must be wrong because of what the Aristotelian tradition said were ridiculous fools, and Pascal did not hesitate to ridicule them.

Pascal’s understanding of theological topics such as God, grace, church, and the nature of the Christian life were deeply influenced by the published work of Cornelius Jansen (1585–1638), a Dutch theologian and bishop. Jansenism, named for Jansen, was a Catholic reform movement of Augustinian inspiration. It was eventually judged heretical in significant part, and it disturbed French Catholicism, and eventually European Catholicism, for a century and a half after Jansen’s death. During Pascal’s life, the movement was institutionally centered on the convents of Port-Royal in Paris, and Pascal was among its principal apologists. Jansenism survives now largely as a label for a set of heresies about grace and predestination, and for a harshly rigorist understanding of the disciplines of the Christian life. That is regrettable, for some of the most knowledgeable and skilled theologians of the seventeenth century were, or later came to be called, Jansenists, and there’s more to be said in favor of their work, and of the tendency within Christianity that it represents, than such a dismissive summary permits.

Augustinus (1640), Jansen’s principal work, is a large study of Augustine, with a particular focus on Augustine’s understanding of grace as set out in his late anti-Pelagian works. The Augustinus was a foundational text for Pascal and the Port-Royalists. They took Jansen’s work to be correct as a reading of Augustine, and orthodox with respect to the doctrines of grace and human agency. They also took it to be an essential corrective to other, largely Jesuit tendencies within Catholicism that, as they believed, over-accommodated Christianity to the pagan mores of seventeenth-century France, and gave too much independence to human agency. In May 1653, Pope Innocent X issued a bull condemning five propositions on grace and attributing them to Jansen’s Augustinus. Innocent described these propositions as rash, false, impious, blasphemous, scandalous, and concluded that they were, collectively, heretical. The Port-Royalists, including Pascal, responded with a flood of polemical writing.

Innocent’s bull, Cum occasione, makes two claims. First, that a certain understanding of the workings of grace is heretical; and second, that precisely such an understanding is endorsed by a particular book—namely, the Augustinus. Pascal acknowledged at once the right of the magisterium to rule on questions about grace, and accepted that the five condemned propositions do enshrine an unorthodox and unacceptable understanding of grace. But he also insisted he had never held such an understanding of grace, and neither, so far as he could tell, had any of the so-called Jansenists, particularly not Cornelius Jansen, whether in the Augustinus or anywhere else.

Pascal’s response calls into question the right—and perhaps also the capacity—of the bishops to rule on matters of fact that can be settled by ordinary empirical investigation. Matters of that sort, Pascal argued, should be investigated by those best equipped to do so, and with the methods best adapted to the task. And the question of whether the Augustinus really did endorse, defend, or explicitly mention any or all of the condemned propositions is exactly a matter of that sort. It’s a question of fact. If you want to know what’s in the Augustinus, there’s just one appropriate method: it’s to study the book. If it includes the five propositions in question, then the references can be given, the quotations supplied, and anyone who wishes can confirm for themselves the facts of the matter. Pascal notes that no one—not Innocent, not the consultors in Rome who advised him, not those among the French theologians and bishops who had it in for Pascal and his friends—had been able to show where the condemned propositions are to be found in the Augustinus. And that, Pascal writes, is because they aren’t there. No matter what Cum occasione says, the Augustinus does not endorse or even contain any of the condemned propositions, much less all of them.

And Pascal tightened the screw. Matters of fact such as the one at issue don’t and can’t require the assent of faith. He writes, in the Provincial Letters, that “when the church condemns texts, she supposes them to contain an error that she condemns; and then it’s a matter of faith that the error has been condemned; but it isn’t a matter of faith that the texts in fact contain the error that the church supposes to be there.” In other words, whatever the pope or the bishops might say about matters of fact, positions on such matters cannot require the assent of faith. They’re simply not that kind of thing. No one’s orthodoxy or salvation depends on whether so-and-so wrote such-and-such in a particular book. People can disagree about what Jansen wrote, or about the best way to interpret it; but the magisterium has no special expertise in such matters.

In pursuing this argument, Pascal applied tools he’d developed in earlier controversies. (He was, from beginning to end, a controversialist: a man for whom the intellectual life was essentially an agonistic matter.) One such controversy had been about whether nature abhors a vacuum. Most of Pascal’s contemporaries thought that it did, and that therefore a vacuum could never be established or observed. Pascal devised experiments that showed, decisively, that a vacuum can indeed be established and observed; and he was scathing about those (again, mostly Jesuits) who thought the question about vacuums could be resolved by appealing to what Aristotle and his interpreters had written. Pascal considered that method inappropriate to the question, which was one of physics, not Aristotelian exegesis. Those who thought that the results of Pascal’s experiments must be wrong because of what the Aristotelian tradition said were ridiculous fools, and Pascal did not hesitate to ridicule them. So also here: the question about what’s in the Augustinus is one that can be investigated by ordinary means (read the book, provide the references), and those who think it can be answered by appeal to what the bishops say misunderstand both the nature of the question and the scope of magisterial authority.

Pascal continued to deny that particular matters of fact can be resolved by magisterial authority.

In 1656, after complicated backroom maneuverings in France and at Rome, Alexander VII promulgated the bull Ad sanctam, which responded directly to Pascal’s argument. Pope Alexander wrote that the five propositions of Cum occasione were drawn from the Augustinus, and are condemned “in sensu ab eodem Cornelio Iansenio intento”: in just the same sense as that intended by Jansen. This raised the temperature. Alexander didn’t back off from what Innocent had written, but rather intensified it in two ways. Now the five propositions were not merely said to have been taught or endorsed by Jansen in the Augustinus, but to have been excerpted from that book; and the sense in which they were condemned was said to be exactly the sense intended by Jansen. That second claim introduced a new problem: it was no longer just a question of what was written in the book, which is a matter of public record, but also of what the person who wrote it meant by it, which isn’t.

Pascal did not retreat. In 1657, partly in response to Ad sanctam, he restated a clear distinction between two ways of coming to assent to some claim. One is by reason, which means deploying for oneself whatever means of investigation are best suited to the claim in question. The other is by relying on authority, which means faith or trust in those best equipped to rule on the topic. Pascal subdivided this second way, faith, into two kinds. First, there’s divine faith, which means faith in what God has entrusted to the church, available to Catholics in Scripture and tradition. Here tradition means “what’s proposed to us by the church, with the assistance of the Spirit.” The church, Pascal writes, is infallible on those matters. And then there’s human faith, which means faith in authoritative people, those best equipped to teach us truths about particular matters (historical, empirical, and so on). And then Pascal writes this:

Everything that has to do with a particular point of fact can only be assented to by human faith. That’s because it’s quite clear that such matters can’t be founded upon Scripture or tradition, which are the two channels through which God’s revelation, on which divine faith is founded, comes to us. And that’s why the church can be in error on questions of fact, as all Catholics recognize.

And this:

To command those who are entirely persuaded of the truth of some point of fact to change their opinion in deference to papal authority would be to require that they abuse their reason against the order of God himself, who has given us reason to discriminate true from false so that we can prefer what we take to be true to what we take to be false.

This makes the tension very clear. In spite of what Alexander’s bull says, Pascal continued to deny that particular matters of fact can be resolved by magisterial authority, and he did that because of an epistemology—an understanding of what knowledge is and how it’s arrived at—that places conclusions about such matters beyond the scope of magisterial teaching. So if you should find yourself in the position, as Pascal did, of having what you take to be clear, even decisive evidence in favor of some conclusion about a question of fact, you shouldn’t abandon that conclusion because a pope or some bishops say the opposite.

It’s worth pausing here to note that Pascal is correct about the question of fact at issue. None of the five propositions condemned by Innocent and Alexander is to be found verbatim in the Augustinus, and if Alexander said otherwise, then he was wrong. Thanks to Google Books, you can test this at home. The 1640 Louvain edition of the Augustinus—1,463 pages of turgidly serious Latin on double-columned badly-photographed pages—can be downloaded gratis. You can read it all with the text of the condemned propositions at hand, and if you do, you’ll find that none of them has been excerpted from the book—not, at least, if “excerpted” means “taken verbatim.” And if you consult the latest edition of Denzinger’s Compendium (2012), you’ll find that its notes to the relevant sections of Innocent’s Cum occasione claim that the first of the condemned propositions is found “literally” in the Augustinus, at 3.III.13. But it isn’t—or not if “literally” means “verbatim.”

Of course, to say that the condemned propositions aren’t found verbatim in the Augustinus is perfectly compatible with saying that the condemned propositions are an adequate summary of the positions defended in that text. I’ll make no claim about that one way or the other. Here I focus on the matter only to provide a clear instance of Pascal’s strong claim, quoted above: that it’s possible for the magisterium to err on matters of fact, and that if we think we have decisive evidence that this has happened, we’d be abusing our faculties—and, I’d add, our consciences—were we to pretend otherwise.

But that isn’t the end of the story. Following Alexander’s bull—and after much back-and-forth among the French bishops, the Roman consultors, and various political factions, to which Pascal contributed with the vigor you might expect—the French vicars general demanded that priests, religious, and teachers of theology sign a formulary of submission to the bulls of 1653 and 1656, in wording designed to make it impossible to maintain a distinction between the condemned propositions and Jansen’s teaching of them. This was in October 1661, just nine months before Pascal’s death. Pascal’s last surviving written contribution to the debate, composed during the last months of 1661, speaks to a situation in which, as he sees it, the Port-Royalists have only three choices: sign the formulary without reservation, which would mean agreeing that the propositions are heretical and that Jansen taught them; refuse to sign; or sign with the reservation that the signature has to do only with matters that concern the faith—i.e., not with the question of what Jansen did or didn’t write or intend or teach, but only with questions of substance about the workings of grace.

Pascal explicitly rejects the third option. By now, he writes, “it’s a point of doctrine and of faith to say that the five propositions are heretical in the sense given them by Jansen.” To sign the formulary, then, is to submit to the denial of the-five-propositions-in-the-sense-given-them-by-Jansen. That complex object can no longer be disaggregated into its components (the five propositions on the one hand; Jansen’s teaching on the other). Attempts to do so have been ruled out by Ad sanctam and the formulary. If one signed the formulary, one’s signature meant submission to all of it; anything else would be bad faith. It would be “abominable before God and despicable before men.” But it’s not clear from this last surviving writing on the matter which of the other two possibilities—signing without reservation or not signing—Pascal endorsed. He died the following August.

At first blush it might seem clear which option Pascal must have favored. If, as he’d been consistent in arguing for the preceding six years, the magisterium’s authority doesn’t extend to matters of fact, and yet explicit submission to a teaching on just such a matter was now being required of French Catholics, shouldn’t he have refused to sign? Wouldn’t signing have been acknowledgement of a kind of authority the bishops don’t in fact have? Perhaps. But it seems to me that there’s something else Pascal might have done—and some evidence to suggest that it’s what he did.

The evidence: First, it’s clear that by late 1661 Pascal was at odds with other Port-Royalists on the question of the signature. The disagreements circled around whether the fact/doctrine distinction could be maintained, whether it was proper to sign with reservations, and whether it was proper to sign at all. That there were such disagreements shows at least that Pascal’s final position wasn’t identical with any of those held by other prominent Jansenists in 1661 and 1662, and since those positions were, essentially, sign with reservation or don’t sign, it’s at least possible that Pascal advocated signing without reservation. Second, there’s some (disputed) evidence in support of the view that Pascal died in full communion with the church, having confessed, received the last rites, and, during the last few days of his life, fully acknowledged to his confessor the right of the church to require his assent to the claims of the formulary. That’s the sworn testimony given after Pascal’s death by the priest who attended him in his last days. This testimony was accepted by the bishop of Paris, who’d commissioned an investigation into Pascal’s death in response to a request that his remains be disinterred from their burial place because he was a heretic who’d died separated from the Church. And third, there’s evidence (again, not probative) that close to the time of his death Pascal asked Jean Domat, to whom his papers were consigned, to destroy his writings on the signature if the religious of Port-Royal found themselves under persecution, but to preserve and publish them if they’d submitted. That report makes more sense if Pascal finally advocated signing without reservation.

Your task as a Catholic thinker is always to do the best you can at what you’re thinking about.

Pascal’s case shows with unusual clarity what it is to hold together two judgments that might at first seem incompatible, and what it’s like to act consistently with such a balancing act. The first judgment is: I’m convinced that p is the case. The second is: I see that the magisterium teaches not-p, and I acknowledge its authority to do so. Acknowledging that an authority teaches not-p doesn’t require you to abandon your assent to p (Pascal never abandons his view that none of the five propositions is found in the Augustinus). What it does require is submission (the signature) to the authority of the teacher who teaches not-p. Not to acknowledge that authority would be, in the Catholic case, to separate yourself from the form of life in part constituted by such an acknowledgment; it would be to look the state trooper in the eye as she asks you to roll down your window and say, “I don’t recognize your authority to direct my action; I’ve nothing to say to you.” You may do that. But doing it comes with a price: it’s the price of removing yourself from the form of life in which state troopers have authority to enforce local laws. That, mutatis mutandis, wasn’t a price Pascal was prepared to pay in the Jansen case, and I’m with him on that. Within the Catholic form of life, the magisterium does in fact have authority to do what it did in that case.

But acknowledgment and submission don’t require pretense. If it seems to you that such-and-such is the case (that the five propositions aren’t in the Augustinus), then clarity of thought and strength of conscience not only don’t require you to pretend otherwise, but require the opposite: when occasion demands, you must say that what seems to you to be the case does in fact so seem, and when relevant you must give your reasons for this judgment. Theologians call this expressing a doubt: I see that the magisterium teaches p, but, so far as I can tell, not-p is the case, and here’s why. We’ve seen Pascal doing this, con brio. The modifier “so far as I can tell” is important. You might be wrong (that’s always true), and seeing that the magisterium seems to be teaching that you are should place your sense of your own rightness under pressure. Pressure of that kind is usually a good thing for the intellectual life: it clarifies conviction by accentuating difference.

The pressure of authority had at least one very clear effect on Pascal’s thought: it led him to suggest that when the magisterium says that so-and-so’s teaching of such-and-such is heretical, the right response is not to try to disaggregate the teaching (separating the so-and-so from the such-and-such), but rather to treat it as a complex whole. That’s what Pascal did in his last surviving letter about the formulary. The nature of that complex whole then requires further clarification. Maybe the best way to describe it is heresies-about-grace-insofar-as-they-are-endorsed-by-Jansen; or maybe it’s whatever-Jansen-wrote-that-supports-this-heresy, or grace-heresies-best-labeled-“Jansen’s”—and there are more possibilities. Once disaggregation is rejected new possibilities for thought open up, both for the speculative theologian (Pascal) and for the teaching church. One such new possibility appeared, as we’ve seen, in Alexander’s Ad sanctam: he develops what Innocent had written in Cum occasione by mentioning the sense in which Jansen intended the five propositions. This, as I’ve noted, postulates an extra-textual something, and moves everyone’s thought away from the textual particulars of the Augustinus and toward something else—a trajectory of thought, an implied grammar, or some such. This magisterial move wouldn’t have occurred without Pascal’s polemics; and those, in turn, wouldn’t have occurred without magisterial pressure. The benefit is mutual, and is the result of the magisterium doing what it should and of a theologian doing what he should.

The other question that Pascal’s case raises and illuminates for us is about the place matters of fact have in magisterial teaching. Suppose we understand a matter of fact to be one capable, in principle, of exhaustive investigation by observation. One example: the presence of a sequence of words in a particular book—affirmed, as we’ve seen, variously, by Innocent X and Alexander VII in the case of Jansen’s Augustinus. Another example: the involvement of a Roman official named Pontius Pilate in the trial, condemnation, and execution of Jesus of Nazareth—affirmed scripturally and credally (“suffered under Pontius Pilate”).

Pascal came to see that his attempt to maintain an impermeable distinction between matters of this sort and matters of faith and morals couldn’t be sustained. But the attempt is helpful to us in two ways. First, it shows that when the magisterium instructs about matters of fact, as it often does, it doesn’t do so with any concern for those matters considered in themselves. Pontius Pilate is interesting to the church only because he was involved with Jesus; had he not been, the church would have had nothing to say about him. It follows from this that it’s a misconstrual of the church’s teaching about Pilate to treat it like an encyclopedia entry, from which data about Pilate can be extracted and considered independently from the story about Jesus. This is compatible with the thought that some things said about Pilate are incompatible with the church’s teaching. That would be true, for example, of the statement “Pontius Pilate was actually in Rome when Jesus was tried.” If you’re a faithful Catholic and you find yourself believing that statement (perhaps you’re a historian and you’ve come to think that this is what the evidence shows), then you’ll find yourself in a position similar to the one just discussed: believing something incompatible with what the church teaches, while also affirming the church’s authority to teach what it teaches.

But there is an interesting, if subtle, difference. Pascal’s insistence on an impermeable distinction between matters of fact and matters of doctrine, and what I take to be his later abandonment of that hard distinction, shows that the tension between the church’s teaching about Pilate and the historian’s findings isn’t best understood as a direct contradiction. It’s not as it would be if you find the church teaching it’s not possible for women to be ordained to the priesthood while you find yourself believing that it is possible. That’s a direct contradiction. But in the Pilate case, the church teaches about Pilate only in his relation to the figure of Jesus: Pilate has no significance for the church outside that relation. His name serves as synecdoche for something like “empire-as-related-to-Jesus.” The point of the church’s teaching about him isn’t to make an entry into a chronicle of events, but to locate Jesus in time and place, and to show something about the significance of his trial and death. Those purposes can be served in other ways, and, so far as I can see, nothing much hinges upon whether the name of the Roman official who condemned Jesus was Pontius Pilate. That much remains of Pascal’s insistence that no one’s salvation rests upon a matter of fact.

And that is the final gift that the Pascal case gives. It provides Catholics who want to think about matters of fact spoken to in one way or another by the magisterium with a fundamental guiding question: What is the significance for the life of the church of the magisterium’s teaching about this matter of fact? There will always be some such significance if, as I’ve suggested, the church never teaches about matters of fact simply as such. Whenever we find ourselves in disagreement with the magisterium about a matter of fact, we should begin by trying to understand what that significance is.

If you want to think as a Catholic about the Lord God, about the human person, or about the good society, you’ll find the magisterium there as a companion and a blessing, albeit one that sometimes comes with painful difficulties. Pascal’s case, on my reading of it, shows how that blessing may be welcomed and the difficulties embraced, to the benefit of all concerned. If you never find yourself in a situation like that of Pascal—seeing that the magisterium teaches one thing while, as far as you can tell, the opposite is true—that is likely an indication that you’re not thinking hard enough, and therefore not doing the job the church needs you to do as a thinker. If, when you do find yourself in Pascal’s situation, you pretend to yourself and the world that you don’t take to be true what you do take to be true, you’re also failing, this time by treating the magisterium as if it were Big Brother and concealing the truth out of fear. Your task as a Catholic thinker is always to do the best you can at what you’re thinking about; to be as clear as you can about the conclusions to which your thinking leads you; to delineate, as clearly as possible, what differences you have with the magisterium’s teaching; and, at the same time, to acknowledge the magisterium’s authority, recognizing that you are more likely to be wrong than the church is. All that together makes a delightfully difficult task. Neither the delight nor the difficulty should be forgotten or covered over. Together, they’re the Catholic thing.

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May 2020

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iamseamus · 7 years

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On Liberal Smugness

After her Not the White House Correspondent’s Dinner, Samantha Bee was asked by Jake Tapper about liberal smugness and she shrugged it off. For many liberal comedians and commentators that self-assuredness doesn’t feel like smugness. It seems more to me that what they see as smugness is an allergy to bullshit. As Vox’s Carlos Maza argued, comedians cover Donald Trump better than journalists because they have a low tolerance for bullshit.

The many expressions that liberals have for Trumpism bullshit may come off as smug but it comes in equal part from, if not more than, a feeling of horror. Comedy and mockery are easier ways to deliver scary and uneasy things. Right now liberals are scared of a president who has plainly said he thinks that the Constitution’s archaic rules have prevented him from enacting change. But comedy and mockery deliver a small modicum of power to belittle the man, and that power to freely mock and deride our leaders, is part of that Constitution.

As Noah Smith pointed out in a recent Twitter thread, liberals seem smug because so many of the topics of debate in the 00s have favored liberal opinions (gay marriage, Iraq, global warming, Bush tax cuts, even Obamacare). As he puts it: “When conservatives tell liberals "Stop being smug", what they really mean is "Stop gloating. You won, stop rubbing it in.”” Smith goes on to argue that currently liberals (or center-left) don’t have a clear message on how to face the current arguments such as the Opioid crisis, economic growth, trade agreements, monopolies and others.

I see some problems with this: namely outside of Trump’s blustery moments of bemoaning opioids and trade agreements on the campaign trail, conservatives don’t have any clearer of a message than this. Essentially, Trump has identified or magnified attention on these particular issues by saying they’re bad. I’ll also add, that many of the aughts arguments, especially global warming, are still being litigated in the public sphere. Healthcare as well. These things are not solved and necessarily separate from the things that Smith says are this decade’s, or more accurately this term’s, problems. Also, it is not the business of liberal commentators and comedians to set the messaging agenda for the Democratic party.

When Bee shrugged off the liberal smugness problem she said that she made the show for “people like [her].” And it’s important to circle back to that problem. She is constantly outraged because there’s outrageous shit going on. Why is 9/11 truther and Sandy Hook denier Alex Jones an informal advisor to the President? Why was Sebastian Gorka, anywhere near the White House? Why were the 16 instances of “[unintelligible]” in a recent Trump interview with the AP.

Part of what I think is codified in “liberal smugness” is a conservative attitude that many people on TV openly criticize one party more than the other. There is no conservative Jon Stewart and there hasn’t been and it’s unlikely there ever will be. For that matter there is no left wing rabid conspiracy theorist in the ear of major political figures. To my thinking, Jill Stein might be the closest comparison some of the insane shit the both Trump and his minions put out there. Until Trump came onto the scene it appeared that the far left might own the Anti-vaxxer phenomenon, but let’s not forget that Tea Partier Michelle Bachmann was propagating this six years ago.

Democratic Politicians certainly need to be better with their messaging on these issues and offer clear solutions to expressed problems. But I am decidedly with Samantha Bee and her shrugging: Exposing bullshit is not a “smug” thing to do. And the goal may not necessarily be to convince large swaths of conservatives to join their thinking, it may just be a way to reassure liberals, “hey, you’re not the crazy. This world is insane and I’ll use my microphone to shout into the void how absurd it all is.”

#samantha bee #not the white house correspondents dinner #jake tapper #noah smith #carlos maza #liberals #liberal smugness

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bluewatsons · 5 years

Text

N.E. Simmonds, Constitutional Rights, Civility and Artifice, 78 Cambridge L J 175 (2019)

Abstract

The value of civility is grounded upon acceptance of the legitimacy of moral disagreement and the need for mutual respect and cooperation in the face of such disagreement. The distinction between rights and goods plays a fundamental role in the form of civility espoused by liberal society. Current models of constitutional rights and proportionality, in a variety of ways, erode that distinction and thereby place the liberal model of civility in jeopardy.

I. After Eden

A tradition of political thought that stretches back to Plato and Aristotle views the institutions of the political community as serving to foster excellent lives for human beings. Law plays an important part in this picture: it helps to inculcate habits of virtue; it helps to protect the virtuous from the predations of the wicked; and it helps to sustain other institutions (such as property, the market and the family) which themselves foster excellence and encourage virtuous habits. But law does none of these things alone. For this tradition, law is only one part of a more complex fabric of practices and institutions with its centre in a single set of values. Those values permeate the whole and provide the unity that makes political association possible.

From the early modern period, and partly in response to the Wars of Religion, a different way of thinking about politics starts to predominate. For a variety of reasons, some not fundamentally incompatible with the first tradition, this approach tries provisionally to set on one side ultimate questions about the nature of human perfection and to provide a framework of entitlements within which individuals can choose and pursue their own conceptions of a good life. Within this way of thinking law becomes utterly central, since it is law that has the task of establishing the relevant entitlements. Reflecting the centrality of law, juridical concepts (such as justice and rights) come to dominate the public discourse. An older language, of virtue and the common good, comes to be unduly neglected.

Although many think of these two traditions of thought as radically opposed, wiser souls view them as mutually enriching strands of thought. Both must play a part in any sound form of liberal democratic politics. Ideas of justice and rights are not self-sustaining: they become productive of illusions when they are isolated from a broader concern with human flourishing. At the same time, the distinct features of the juridical realm must be sustained if freedom is to be preserved. Rights must not be made conditional upon their virtuous exercise, nor dissolved into a goal-oriented focus upon the attainment of desirable states of affairs. In particular, the rule-based character of law must be respected. A polity that in this way respects the integrity of law thereby establishes a form of civic friendship for a world where justice is always contested.

Michael Walzer has described liberalism as an “art of separation”.1 It separates private life from public life; church from state; the family from the economy; the state from civil society; adjudication from legislation; and so forth. Each of these separable spheres derives its character from the distinct values towards which it is oriented. The pre-liberal view assumed a single right ordering of conduct directly informing every aspect of social and political life. Merchant, prince and peasant were to act upon a shared idea of Christian virtue, grounded in the teachings of the Church. The social order was conceived of “as a highly articulated organism of members contributing in their different degrees to a spiritual purpose”.2 But liberals came to understand that, while any tolerable political community must rest upon shared values, those public values are to some extent separable from many of the concerns which centrally inform the private lives of citizens. The need for virtue cannot be confined to the private realm, for there are distinct public virtues which ground mutually respectful interaction, along with political and mercantile probity. Such public virtues facilitate the peaceful pursuit of diverse private goals. But, being expressive of full mutual recognition and civic friendship, they also, in themselves, constitute a centrally important aspect of a flourishing life.

The various separations cherished by the liberal are not given by abstract reason but result from a mixture of accident and artifice. They require an “artificial reason” of the kind that Sir Edward Coke ascribed to the law. Indeed, the taught traditions of the law have often played a large part in maintaining the stability of the relevant distinctions. But, for this very reason (and given the centrality of law to modern liberal society), an erosion of such distinctions within the law itself could have particularly far-reaching consequences.

To describe something as “artificial” was once to say that the thing in question is a potentially admirable work of human ingenuity, manifesting the relationship between human freedom and the divine plan, and adding thereby to the glory of God's creation. It in this light that we must understand Coke's idea of the law's “artificial reason”.3 For natural reason is, on its own, insufficient to resolve our problems. Reason reveals to us the need for mutually respectful cooperation, and for the conduct of our lives in friendship with others. But it does not offer us a blueprint for our lives together. We disagree about justice; and, on any sound understanding, the prescriptions of justice are plural and potentially competing. In consequence of this, we must devise our own solutions, even though our solutions will still be constrained by circumstance and answerable to very general requirements of reason.

Today, however, to say that something is “artificial” is to say that it is fake, or lacking in real value.4 We contrast “artifice” with such things as authenticity and sincerity. Reflecting that outlook, many people today think that the law should directly reproduce the latitude and accessibility of popular discourse: a modern analogue of the “natural reason” favoured by King James in his famous debate with Coke. They would see only exclusivity and elitism in an “artificial reason” that must be “gotten by long study”. And, to those who take that view, the introduction of “human rights” to the law seems beneficially to disrupt the hard carapace of traditional legal thought, creating a conduit through which fundamental values, expressed in a currently familiar idiom, can enter the courtroom in a relatively unmediated form. Because the firm rules and clear watersheds, which are aspired to by the taught tradition of law, often fail accurately to trace the fluid contours of our ordinary concerns, those rules come to be regarded as regrettable obstacles (“artificial” in the pejorative sense) to the pursuit of what truly matters. A form of legal thought which balances values one against another comes to seem both more transparent and more focused upon the important issues. The boundary between juridical reason and social policy becomes blurred.5 Coke's talk of “artificial reason” begins to seem no more than a smokescreen wrapped around sectional interest.

The separations of liberal thought and practice have long been subjected to hostile scrutiny. Typically, in this genre, the various dichotomies are revealed to be products of historical contingency and are then attacked as having damaging and distortive consequences. Thus market freedoms can be portrayed as serving only to obscure the realities of domination and exploitation; the family can be painted, in sombre tones, as a realm of domestic tyranny and a source of distributive injustice; the private associations of civil society (such as churches and independent educational institutions) can be viewed as pernicious barriers to moral uniformity; the principled consistency of legal doctrine can be viewed as merely an illusory heaven of equal rights disguising material inequality. The critiques derive much of their power from the implied contrast with an imagined community, free from liberal separations, where the embeddedness of institutions within a uniform ethical fabric erases the harsh dichotomies of modernity. The critics tacitly lament the passing of a world of wholeness that supposedly preceded the division and fragmentation of the present; or they bemoan the unattainability of some such state, given our current situation on Dover Beach.

Dreams of all-encompassing unity are not restricted to the critics of liberalism. For, in lending great prominence to the idea of rights, and in appearing to suggest that the realm of rights can be entirely self-sustaining, the public discourse of liberalism can itself become a source of such illusions. We traverse a landscape where mirages are frequent. Evanescent glimpses and faint suggestions are taken for evident indicators. Can we not find our way to the well-watered land of perfect justice and moral unanimity? Does the virtually universal endorsement of the idea of human rights not point to that land as just over the horizon?6 Is the path not already clear and open to us, provided that we are not discouraged by the voices of scepticism?

In this way, constitutional arrangements that were adopted, after the Second World War, to prevent a recurrence of totalitarian horror, come to be viewed as signposts to a future transformed, not simply by the absence of abhorrent evil, but by the positive realisation of perfect justice. To construe such constitutional provisions as merely extreme backstop defences against the worst atrocities is, from this perspective, to neglect their potential for effecting an all-encompassing transformation.

Reflective liberals of conservative disposition are unlikely to be seduced. They see abstract talk of justice and rights as failing to provide us with sufficiently determinate guidance. A high degree of convergence in the identification of truly gross injustice does not guarantee similar convergence in our opinions concerning perfect justice. Universal agreement upon general formulae (whether framed in terms of human rights, or freedom, or equality) is likely to fracture and disintegrate when the formulae must be unpacked and applied. Standards of justice are plural and permanently open to dispute. Public acceptance of that fact grounds the core political value of civility. Those who deny this, and believe themselves to be in possession of the whole and incontestable truth concerning justice, seem to misunderstand the human condition quite fundamentally. The pursuit of perfect justice seems more likely to destroy civility than to foster any values that might transcend it.

An elegiac strand of thought is fundamental to the cultural outlook of liberal conservatives: they find it natural to consider the most shimmering ideals to be illusory or irretrievably lost to us. Theirs is a politics of imperfection, grounded in a deep appreciation of the ease with which dreams can become nightmares. Purely celebratory or aspirational versions of liberalism (from which the elegiac motif and its associated scepticism are absent) become prominent from time to time. Mistakenly construing the dominant juridical discourse as embodying a self-sufficient vision of human community, rather than as one aspect of a complex web of dependencies and distinctions, these approaches quickly degenerate into vulgar sloganising. They postulate all-encompassing political goals which possess a wide appeal only to the extent that their content remains unspecified (here the language of freedom, equality and human rights is especially popular). The supposedly happy conditions, which are vaguely envisaged by such language, are to be secured by the technical management of the state. This requires ever-increasing levels of intervention in the various aspects of social life which make up the liberal polity, thereby eroding the key separations (including the separation between state and civil society) upon which liberalism depends.

Technocratic management of this sort in turn requires an appearance of commensurability to be imposed upon the diverse forms of value composing our moral and juridical life. For, without such a semblance of commensurability (if the relevant values are not to lose their distinct identities, a semblance is all it can be), technocratic decisions are revealed as groundless exercises of power.7 This misleading veneer of commensurability implies that demonstrably correct solutions are available to resolve core political issues, and that those who oppose such solutions are the enemies of justice: an erosion of civility is the inevitable result. The pretence of commensurability also obscures the diversity of forms that moral values typically exhibit and that a fully human life will encompass. For example, an adequately rich moral life will incorporate values that must be honoured or respected along with, but by contrast with, those that must be promoted or advanced; some values provide goals, while others constitute constraints upon the pursuit of goals. Within the outlook of technocracy, on the other hand, all values are to be “optimised”.8

The wise liberal, sadly acknowledging that we are by nature fallen creatures who cannot return to Eden, finds a sense of loss to be entirely appropriate. This sadness must not divert us from the task of making the best of things, nor should it lead us to neglect or underrate such valuable practices as we already possess. We should not imagine that diverse values can, without losing their character, be stirred into a common pot. The imposition of a technocratic framework upon our values is not the replacement of unstructured intuition by articulate reason. Nor is it a successful convergence upon a common agenda that will lead to a promised land. Rather, it is a failure to understand the nature of our own cultural and political heritage. When reflectively understood, that inheritance (marked though it may be by the fact of human imperfection and the unavoidable reality of moral disagreement) embodies a unity that transcends mere uniformity.

As Milton makes clear in the closing lines of Paradise Lost, when we look back on Eden we are right to drop “some natural tears”. But it is also right that we should “wipe them soon”. For it is the loss of Eden that makes us fully human, and our humanity is not to be regretted. Bearing the burden of our humanity, but also cherishing that humanity, we must “hand in hand, with wandering steps and slow” make our way through the world that lies before us. No single path is pre-ordained for us by reason, and no heavenly destination is secure. Our journey is not a march to some distant horizon where all that matters is the destination. It is a slow forging of bonds between the wanderers (bonds which are inseparable from memory, and attachment to the things that have been). The required posture of self-reliance, realistic hope, mutual supportiveness and fortitude in the face of adversity confers on us our most ennobling aspect.

To say that we must make our own way is not to say that our course is arbitrary. Nor is it to suggest that our course can be pursued only in a spirit of post-modernist “irony”. The ways that we might follow are the product of some broad prescriptions of reason, but those prescriptions require us to establish the institutions of civility, and such institutions can take a variety of different forms. A concrete version of civility emerges through a mixture of practice, experience, local allegiance and reflective dialogue. The separations upon which liberalism relies are indeed (as the critics have noticed) historical products rather than direct dispositions of reason. They are established as we go along, slowly woven into the texture of our lives, and found to be habitable before they become features of a philosophical understanding. Not everything of value needs to be an unmediated expression of natural reason: custom, shared attachment and habituation will always play a large part. The somewhat accidental inception of our practices will generally long precede our reflective understanding of their significance. But the attainment of that understanding does not convert our civil and political practices into mere applications of abstract principle. Indeed, they are to a large extent the groundwork of such principles, in detachment from which the principles themselves cannot be grasped or applied. We are the heirs of a complex history, and such spiritual depth as we possess is ours only in consequence of that history.

II. Rights and Goods

One of the key distinctions for the liberal “art of separation” is that between the realm of rights, on the one hand, and the realm of goods more generally, on the other. The separation is necessary if individuals are to enjoy a sphere within which their will can be decisive; without such a sphere, liberty cannot be a reality. Consequently, rights, once conferred by law or publicly acknowledged, must give to the individual a secure domain wherein the majority's view of what is desirable no longer prevails. As John Rawls points out, we think of justice as requiring rights that are not subject to “the calculus of social interests”.9 For that to be possible, not all social interests or values can be treated as rights. There must be a difference between rights and those various things which are good and to be pursued by governments and individuals.

The difference is manifested in the differing logics that rights and goods obey. Rights are to be carefully delineated, acknowledged and respected. They have bounds which should not be violated. Rights offer each of us a domain of options which enjoy a significant degree of independence from the will of others.10 This is why the boundaries of a right must, so far as possible, be identifiable in advance of particular situations where the right must be invoked and relied upon.

The boundaries of a right are important, even though they may seem on occasion to be artificial disruptions of the continuities of natural reason. Moral issues, taken in the round, are usually too complicated and multi-faceted to admit of reduction to simple watershed rules. To recognise rights is to ascribe decisive significance to what may seem only a narrow aspect of the moral situation. For this reason, those who emphasise the importance of rights can sometimes appear to be blind to the complexity of the moral issues that we confront. An insistence on rights as overriding can strike us as dogmatic. And those who dream of Eden may feel convinced that we can find a more sensible and moderate way of accommodating rights within our polity. Here is the seed of error.

By contrast with rights, which should not be violated, goods are to be pursued but must consequently be weighed and balanced against each other. Within the discourse of goods all relevant considerations seem to be easily accommodated, making this approach appear to be considerably more flexible, and open to the complexity of human affairs, than is the discourse of rights. But this flexibility in acknowledging various aspects of the moral situation is then combined with an opaque strategy for relating those aspects one to another: we are simply told that they must be “balanced”. In seeking to understand this form of reasoning, it proves remarkably difficult to penetrate beyond the metaphors of “weight” and “balancing”.

Amongst other separations, liberalism requires respect for the differences between two distinct forms of discourse: one where, unavoidably, we weigh and balance goods, and another where we acknowledge and respect rights. The boundary between these domains, and the notion of an individual right itself, are not things directly given by reason, but something that an emergent liberalism distils from an older discourse of right ordering.11 At the same time the ideas in question are not arbitrary, but responsive to the needs of social creatures. Established and policed by the rule of law, rights are possible only as a result of the governance of rules (the rule of law being fundamentally the governance of rules). This is not to deny the possibility of moral rights apart from law. But our sense of the overriding importance of rights, and therefore of moral rights, is always dependent upon our familiarity with the idea of respect for rules as something apart from the weighing and balancing of goods. The most eloquent expression of what is involved in such respect is to be found in the traditions of law. Moral rights grow and have their being only under the aegis of the law. As Maitland pointed out, “nothing that we can do will ever deprive the word ‘rights’ of its legal savour”.12

The logic of rights is quite different from the logic of values more generally. In asserting that I have a right to act in a certain way, or a right to some performance on your part, I do both more and less than claim that the action in question would be good and valuable. I do less than this because we may have rights to perform actions that are without value and perhaps even highly undesirable. To some extent this is a consequence of the liberal's emphasis upon the value of free choice: freedom to choose must often include freedom to choose badly. But it is also a consequence of the liberal's commitment to governance by general rules rather than ad hoc decision-making. Governing rules need to be workably clear and simple, and will therefore often fail to exclude from the scope of their protection activities that have little or no value. Practical requirements here reinforce liberal values.

In claiming a right I also do more than claim that my action is valuable. For valuable things must be weighed against other valuable things with which they can clash and compete. The logic of rights is different. Rights possess peremptory force. They bring an end to weighing and balancing. The question is not one of how my interests are balanced against yours, but of whether I am within or without the scope of my rights. The boundary of a right is uniquely important. The special force of rights is precisely their resistance to balancing. As Bernard Williams puts it: “If people have a right to something, then someone does wrong who denies it to them.” Rights do not, Williams observes: “signal goods and opportunities which … should be provided if it is possible.”13

This peremptory force is clearest of all in the case of legal rights. If I demonstrate to the judge that I have a legal right to plant tall trees along the perimeter of my land, depriving your land of light, we do not expect the judge to say: “I accept that you have such a right and I will certainly take account of it when I decide whether you should be allowed to plant the trees.” Once the right is demonstrated, the question at issue is conclusively resolved. When rights relate to the right-holder's own action, they are conclusive of the permissibility of that action.14 And when they relate to the action of another, they are conclusive of the duty to perform that action. Rights on this model are best framed, not as rights to states of affairs, but as rights to the performance of actions (including, when the right is so defined, actions that secure the existence of a certain state of affairs).

The peremptory force of rights is grounded in the fact that law is primarily a body of rules. Rules, as Dworkin points out, apply in an “all or nothing fashion”: if the rule is both valid and applicable it dictates the outcome in the case.15 A rule is not a reason for deciding the case one way which must then be balanced against other conflicting reasons. Collective judgments of good and bad are of course likely to underlie the community's decision to confer this or that right. But, once conferred, rights can be exercised as the right-holder chooses.16 We expect the liberal polity to respect the integrity of rules, and we entrust a special responsibility for this to the guardians of artificial reason: lawyers, judges and legal scholars.

The rule of law, understood in terms of Lon Fuller's eight requirements,17 and the existence of rights, are in this way intimately interconnected. To the extent that the rule of law is observed, the law as a whole becomes a complex system of rights and duties possessing peremptory force. And to the extent that I am governed in accordance with published, prospective rules, compliant with the eight requirements, I will enjoy a degree of freedom as independence from the power of others which can be enjoyed in no other way.18 For this reason, rules form the core of legal doctrine, and juristic craftsmanship embodies the aspiration of making the rules as clear, and as straightforwardly applicable, as possible. Although legal reason is always structured and informed by considerations of justice and the common good, proficient lawyers strive to make legal doctrine rule-like, so far as possible. They tend to regard vague formulations and balancing formulae as at best placeholders that must in due course be replaced by clear rules, when the accumulation of wisdom and experience makes the formulation of such rules possible. As Neil MacCormick put it: “Rival positions of principle, or rival views of the contextually appropriate balance or priority of principles, press towards settling rules that state a determinate position focused on determinate types of situation.”19

Being the product of rules, rights that possess peremptory force are assumed to form an internally consistent scheme. Legal systems have intellectual practices that go some way towards maintaining this consistency. Thus we treat the later enactment as modifying the earlier enactment; the more specific rule as derogating from the more general rule. And, when rules appear to conflict in a way that is recalcitrant to these techniques, we strive to interpret each rule in a way that removes the conflict. By contrast with this, when rights are construed as “optimisation requirements” (as Robert Alexy construes constitutional rights, in his enormously influential work on this subject20) conflicts between rights can be allowed to proliferate and must then be resolved by “balancing” the relevant values in individual cases.

The proposal that we think of rights as optimisation requirements to be balanced against each other, and against other considerations, may seem attractive. After all, when rights are given peremptory force, the precise location of the boundary of each right comes to be critically important (since the question to be addressed always concerns the scope of the right). But natural human concerns often fail to reflect the discontinuities established by rights, such discontinuities being the product of artifice. Our concerns tend to flow into one another, or to be marked by differences of degree rather than kind, making a focus upon clear boundaries seem misguided. Furthermore, however important rights may be, they are not absolute and are not the only things that we care about.21 We care about many different things and sometimes we are forced to choose. So why not acknowledge this situation more clearly, by thinking of rights as factors to be weighed in a balance rather than as possessing peremptory force? Why concern ourselves with the precise (and, therefore, somewhat artificial) boundary of each right, when we could treat each right as simply flagging up an area of concern that may have quite vague and indeterminate limits? Why not think of the political community as an undifferentiated field of competing values, governed by natural reason, rather than as an assemblage of distinct practices each with its own internal logic? Do the artificial distinctions that we have inherited really matter? Can a deeper moral unity not be achieved if those distinctions are abandoned?

In the face of such proposals, one who insists upon a particular usage (e.g. one who insists that rights must possess peremptory force) can appear to be merely dogmatic, as if they are simply invoking our ordinary usage and seeking to render that usage static and invulnerable to the flexibility of dialogue. The outright rejection of such dogmatism can seem sensible.

An understanding of the nature of rights, however, should never be detached from the broader political and juridical philosophy which gives to such an understanding its point. My aim, therefore, is not dogmatically to assert and cling to a traditional meaning, as if meanings are set in stone. Rather, the aim is to deepen our grasp of distinctions that have, in the past, been respected and embodied in our practice, and to give some indication of why those distinctions matter. This is not an exercise in dogmatic lexicography, but a contribution to the liberal art of separation.

III. Moral Rights

Of course, as I have already acknowledged, we may speak of moral rights as well as legal rights. Indeed, the centrality of law to the liberal vision of political community causes juridical notions, such as “justice” and “rights”, to become dominant within public discourse. But here we find a dangerous dynamic within liberal society. For the emphasis upon the importance of rights within a liberal political community creates a popular culture wherein the language of rights can come to colonise every aspect of the moral discourse. To refuse to express a moral concern as a matter of “rights” is now regarded as failing to take that moral concern seriously. Older moral concepts, such as “virtue” and “the common good”, have an antiquated sound for modern ears. They are very little understood and may even have a vaguely troubling resonance for many. We find ourselves asking whether an emphasis on virtue might not be incompatible with the liberal's celebration of personal freedom. Or we ask whether an emphasis on the common good might not endanger individual interests that compete with the common good.

The delicate ecology of our inherited moral discourse is thus placed at risk by the steadily burgeoning discourse of rights. This is most certainly regrettable. For, apart from the other losses that the development entails, when all moral concerns are expressed as involving “rights”, we lose any sense of the precise way in which rights possess a special moral force. Rights come to be thought of as simply important interests that are to be balanced against other interests. The exact bounds of a right cease to be of real importance, since the right is fundamentally a factor to be weighed in a balance rather than a clearly defined domain of enforceable entitlement. Or, worse still, an assertion of “rights” is thought of as simply a demand, indicative of strength of feeling but nothing more. A corrosive moral subjectivism here goes hand in hand with a public encouragement of intransigence.

The neglect of, or misunderstanding of, such concepts as “virtue” and “the common good” is equally lamentable. For liberal democracy depends upon the virtue of its citizens: in particular the virtues of tolerance, mutual civility and respect for the inherited practices that constitute the polity. The proper functioning of political institutions is seamlessly connected to the common courtesies that inform daily intercourse. A declining emphasis upon the virtue of citizens suggests a belief that politics is exclusively a struggle concerning the use of governmental power, rather than a matter which centres upon civil relations obtaining between citizens.22 But liberal democracy is unlikely to survive the emergence of a culture where citizens accept no need for personal virtue, no requirement of common civility, and expect all problems to be resolved by technocratic solutions.

Similarly, the common good is not some sort of aggregate which can sensibly be contrasted with individual rights. It is not something that can be measured by economic indicators or by surveys of self-reported well-being. It is not the fruit of technocratic intervention. It is, at its core, an orderly structure of rights and practices grounded in the virtue of citizens. It must be oriented towards justice, but in a manner that acknowledges the contested nature of perfect justice and is therefore respectful of established laws. The common good is not the complete good for individuals, but nor is it merely an instrumentally important necessity. As an expression of civic friendship, it is an essential constituent of individual flourishing: a constituent which can only be realised in common. It is the form of friendship obtaining between citizens who are independent yet mutually supportive. Our lives would be impoverished, and not simply impeded, without it.

Misunderstanding these things, we are in danger of losing our path. To possess a distinct role within moral discourse, rights must possess a peremptory force analogous to that of legal rights. They must be treated as conclusive of the issues that they govern. A liberal society requires legal rights (primarily the rights conferred by ordinary laws) that are not optimisation requirements but peremptory constraints upon such requirements. Such an understanding of the nature and status of legal rights is threatened when our seemingly most prominent and important rights, namely constitutional rights, lack peremptory force. Rights must be insulated from the calculus of social interests: they must not become factors within that calculus. Such rights depend upon the art of separation. And respect for the relevant separation is an expression of civic friendship.

The profligate invocation of moral “rights” erodes significant distinctions and undermines mutual civility. Imbibing the general sense of rights as urgent and overriding, while ignoring its juridical substance, the insistence upon framing virtually every moral issue as one concerning “rights” simply spawns an unwillingness to moderate demands or to concede the possibility of error. When every important interest comes to be spoken of as a right, the distinct logic of rights is obscured. In this way, the more celebratory and strident understandings of liberal values become the enemies of liberalism, destroying the political fabric that nurtured them. Haunted by a dream of moral wholeness, we too easily fall prey to an empty sloganising which obliterates the established allegiances upon which civility depends. Setting our gaze upon remote horizons, we neglect the value of our familiar inheritance.23 We allow the liberal “art of separation” to dissolve in a toxic monoculture of asserted but illusory rights.

IV. Constitutional Rights

After 1945, it was considered desirable to do something to prevent a recurrence of regimes resembling the Third Reich. Constitutional rights seemed to be part of the answer, and both the German Basic Law and the European Convention on Human Rights included a catalogue of such constitutional rights, drafted very much with the Third Reich in mind. The rights were not limited to the traditional civil and political liberties (the kind of rights that are thought to bolster the functioning of democracy). Nor were they framed, for the most part, by reference to permitted or required actions. Rather, they sought to identify certain fundamental human interests which were to be insulated from the most extreme hazards of legislative and governmental supremacy. This was a new turn in our politics and it posed some very new questions.

The solution was found in defining rights very broadly but making the majority of such rights subject to limitation by reference to certain specified legitimate state objectives. The various possible bases for limiting rights are themselves framed broadly, so that they include practically all of the relevant considerations upon which any government could legitimately act. Given the historical context in which these documents emerged, one might well have expected that they would be construed as aiming to prevent only the most gross injustices; and, given their drafting, one might have assumed that this was to be achieved by restricting governments and legislatures to actions genuinely motivated by a concern for legitimate state objectives (thereby ruling out such things as the evident persecution of particular ethnic or religious groups).

Instead of adopting such a reading, the courts concluded that the rights in question were to be applied only via a doctrine of “proportionality”. Under this doctrine, the encroachment upon the right must not only be strictly necessary to the advancement of a relevant governmental objective, but the latter advancement must also be sufficiently important to justify the particular encroachment involved. The approach immerses the courts in the task of weighing and balancing what are acknowledged to be entirely legitimate state objectives; and the core question to be addressed concerns, not the sincerity of the legislature's ostensible purpose, but the soundness of the value judgments upon which their legislative decision rests. This model has been adopted in many jurisdictions around the world. The German Constitutional Court, the European Court of Human Rights, the Israeli Supreme Court, and the Canadian Supreme Court have all become highly influential exponents of what has been described as the “global model” of constitutional rights.24

That description is not intended to suggest that all of these regimes are fundamentally the same, but that they do have some important and distinctive features in common. The description may also seem appropriate for a further reason. The interpretation of rights in both the German Basic Law and the European Convention on Human Rights (and in constitutional documents from a number of other regimes) reflects the general way in which rights are framed by the Universal Declaration of Human Rights. They are, for the most part, framed and interpreted as protecting fundamental interests of the right-holder rather than by reference to specific actions (permissible actions of the right-holder or required actions of a correlative duty-bearer).25 And this common feature may suggest, as an ultimate guiding possibility, a monistic understanding of the relationship between international and domestic law, with the entire global structure centring upon human rights.

While it has its critics, the global model of constitutional rights also has many enthusiastic admirers. The reasons for the popularity of this model are not far to seek, even if we set on one side its suggestion of being a step on the way towards a rights-based global legal order. For it mirrors closely the popular culture of rights mentioned earlier, where rights come to be thought of as simply weighty interests that feature in a process of weighing and balancing. The popular discourse of rights, having developed in the shadow of the law, now threatens to become a parasite which fully colonises its host.

V. An Illusory Distinction?

My argument depends upon a contrast between the domain of rights and rules (on the one hand) and the domain of goods and balancing (on the other). But it might be suggested that the contrast is overdrawn. For, in the first place, some rules are framed in terms which require balancing: the most obvious example being rules that employ concepts such as “reasonableness”. However, given the task of interpreting and applying such rules, lawyers have often tended to develop, through precedent, subsidiary rules that unpack and concretise the requirements of “reasonableness”. This tendency (which some will consider undesirable) illustrates the way in which legal thought is normally guided by the orienting idea of law as a system of rules: lawyers have traditionally, and rightly, resisted the idea of official discretion unrestricted by rules and have seen it as part of their responsibility to develop and articulate the law in the form of rules.

Robert Alexy envisages something similar happening, in the long term, in relation to the balancing of rights against governmental objectives, under his “Law of Competing Principles”. This law states, in Alexy's formulation, that “The circumstances under which one principle takes precedence over another constitute the conditions of a rule which has the same legal consequences as the principle taking precedence”.26 The suggestion is that, through the steady accumulation of judicial decisions on the applicability of constitutional rights, a body of rules will slowly emerge. Those rules would in turn give rise to rights possessing genuine peremptory force.

Even if Alexy was correct about this, we could scarcely rest easy with a deferral of secure rights into the indefinite, and probably quite remote, future. Nor are the current indications especially encouraging. Decisions on proportionality are often closely focused upon the specific facts of individual cases. Indeed, the proportionality doctrine does not seem to embody or encourage a sense of the lawyerly responsibility to develop and articulate workable rules for the guidance of future decisions. Judges cannot, of course, justify decisions by reference to non-universalisable features of the case (such as the date on which it was decided) since a requirement of universalisability is inherent in the very idea of justification. But they can justify their decisions by reference to complex assemblages of universalisable features, so that no workable rule which is likely to apply in future cases will emerge. And there are good reasons for expecting judges to adopt that course of action. For, if they allow binding subsidiary rules to develop, they will be abrogating for the future the very considerable political power that the balancing model gives them. Are we to ignore the possibility that judges may not wish to lay the shackles of law back on their own limbs, having once tasted the pleasures of political power without political responsibility?

In the light of these considerations it would be foolish to dismiss the worries that many commentators have about the largely discretionary character of constitutional rights decisions under the doctrine of proportionality. The fact that legal scholars might hope, in due course, to distil some rules from a long course of discretionary judicial decisions is no substitute for the judges feeling a responsibility to articulate such rules, and adhere to them, in the first place. Yet we find that enthusiastic admirers of the proportionality approach, far from urging judges to undertake such a responsibility, are inclined to be critical of the search for “very sharp, categorical distinctions” and “rigid and unbending rules”.27

It might be alleged that my picture of legal reasoning as rule-application is itself flawed. For rules are frequently modified in the course of application, and this is frequently done in the application of deeper legal principles. While rules apply in an “all or nothing fashion”, theorists such as Dworkin speak of the law as involving “principles” in addition to rules: principles have a dimension of weight and are to be weighed against each other. Furthermore, Alexy analogises constitutional rights to principles in other areas of law such as private law, viewing them both as “optimisation requirements”. So, from this point of view (it might be argued), the contrast between ordinary legal doctrinal thought and the balancing process established by the global model of rights is much less substantial than I am suggesting.

But, in private law, principles are not best understood as serving interests or states of affairs that are describable independently of the principles. The principle that “no man shall profit from his own wrong” does not aim at any situation other than the one that consists in people not profiting from their own wrongs. The principle that “contractual rights must be exercised in good faith” governs the standards obtaining within the contractual relationship, but it does not aim to advance any independently identifiable state of affairs that is likely to flow from that principle-defined relationship. The principle volenti non fit injuria aims to specify what will and will not count as a legal injury, but does not aim thereby to advance some situation that could be defined in terms not involving the ideas of “injury” and “consent”. We may loosely speak of the judge in the private law context as “balancing” such principles one against another. But a more enlightening picture would be one of the judge or jurist seeking to frame rules that are appropriately respectful of the relevant principles. Even when the rules seek to advance certain goals in an instrumental fashion, the content of the rules will often be shaped by principles (perhaps by a plurality of partially competing principles) which are to be honoured and respected rather than advanced. The language of “optimisation” obscures this important difference.28 Here we see the imposition of a technocratic language upon juridical practices informed by more traditional moral conceptions.

It should be added that principles in private law are themselves extrapolated and generalised from the existing legal rules. They serve to give greater determinacy to the legal rules by ensuring that the interpretation and application of individual rules is informed and controlled by the system of laws as a whole. The articulation of principles proceeds on the basis of an assumption that, to enjoy legitimacy, the legal rules must be aimed at implementing some coherent conception of justice and the common good. Constitutional rights, by contrast, need have no organic connection with the existing legal rules.29 They are introduced by enactment and their point is not to stabilise the interpretation of rules but to measure those rules against an independent standard. Alexy's analysis of constitutional rights and legal principles as both being “optimisation requirements” is therefore inherently misleading.

VI. Justice and Mutual Civility

Because constitutional rights are now required to be balanced against legitimate governmental objectives, their precise bounds are given less importance. The scope of the rights tends to spread until practically the whole law is entangled with issues of constitutional or human rights. This is especially true of those jurisdictions where the relevant catalogue of rights includes a general right to liberty. The tendency is greatly augmented by doctrines of “horizontal application”. The phenomenon may be referred to as “the radiating effect” of rights.

These very extensive rights now lack peremptory force: they settle nothing but are simply important considerations to be taken into account in a balancing process. We may well wonder whether anything is left here of the idea of “a right”. The distinct logic of rights decomposes into the general balancing of values one against another.

Thus the editors of a recent volume of essays on the subject tell us that rights have now been “overtaken” by the idea of proportionality.30 One critical commentator has perceptively suggested that the entire catalogue of constitutional rights might be replaced by a simple provision to the effect that the law must observe the principle of proportionality.31 And one very enthusiastic advocate of the current law tells us that we need to “abandon the idea that rights hold a special normative force” and should adjust our expectations concerning rights.32

This is not simply a matter of constitutional rights falling short of the ideal we might have hoped for. If that were the case we might well say that they are not perfect, but they are better than nothing and we cannot see a way to improve them. The radiating effect of rights, and the doctrine of horizontal application, mean that practically the entire law comes to be subject to the proportionality test. So it is not just that we have got only part of what we might have wanted: constitutional rights but without the peremptory force of ordinary legal rights. We have in principle subjected all legal rights to a test of weighing and balancing against other values, thereby abandoning the distinctive logic of legal rights.

And here the heart of the problem may become clearly visible. The idea of “proportionality” is now standardly construed in a technocratic fashion that implies some form of commensurability (even if it is only the largely empty form of comparing degrees of seriousness of encroachment upon the relevant values). This is especially so when rights are thought of as “optimisation requirements”. But, if we set on one side the technocratic outlook that is suggested by such talk of proportionality, it might be said (as Aristotle might say) that proportionality is justice: a law which perfectly acknowledges all relevant interests and considerations, and exhibits respect for them in an appropriate way, is a perfectly just law.33 Is the core idea underlying the new law of constitutional rights simply the idea of justice? A constitutional doctrine that allows the judges to strike down laws (or require the amendment of laws) whenever they consider them to be unjust seems to be an experiment fraught with danger. For we disagree about justice. To say this is not at all to espouse a non-cognitivist position which says that there is no truth concerning justice. It is simply to say that arguments concerning justice are not algorithms; and, even if there is a truth, reasonable people will disagree about what the truth may be. This is not a contentious claim but a trite one. It is vital that we understand this, for it is the basis of the mutual civility upon which any liberal society must be built.

If we are to have rights, we need a shared set of rules. We need, as Finnis puts it, a shared plan for the common good.34 A liberal society will favour a plan that establishes clear rules and avoids the conferment of extensive discretionary powers upon public officials (including judges). Hence the efforts of legislators, judges and jurists to articulate law in the form of a system of rules.35 And, failing a degree of unanimity which is highly unlikely in a modern liberal society, some of those shared rules will be regarded by many as less than perfectly just. Mutual civility, grounded in a wise acceptance of reasonable disagreement concerning justice, then requires compliance with rules even though we may consider them unjust. Our compliance with the law is the primary expression of our civility or civic friendship.36

Mutual civility, and the requirement that the laws must be obeyed even when we consider them to be unjust, together rest upon the thought that my own views concerning justice may be mistaken. This thought in turn rests upon an idea of moral truth, for if there is no possibility of truth (if, for example, moral judgments are simple expressions of feeling without cognitive content) there can be no possibility of mistake. At the same time, the acknowledged possibility of error is an acknowledgement that moral arguments are not algorithms but depend upon an irreducible element of individual judgment that will vary from one person to another. By contrast with this, an entrenchment of proportionality doctrine at the heart of our law seems to imply a more technocratic view within which the systematic application of a prescribed analysis yields conclusions that do not admit of reasonable dispute. The falsehood thereby placed at the heart of our legal and political culture means that we build upon insecure foundations, permanently open to excoriating critique.

One thing that mutual civility does not require is compliance with enacted rules that are themselves a clear breach of mutual civility: rules which are so grossly unjust that no reasonable person could possibly consider them to be just; rules that could not plausibly be claimed to be good faith, albeit misguided, attempts to articulate the requirements of justice. This is perhaps the idea behind Gustav Radbruch's proposal that truly grossly unjust enactments should not be regarded as law at all.37 Like the drafters of the German Basic Law and the European Convention on Human Rights, he had in mind the experience of the Third Reich. Radbruch viewed his formula as a proposal for extreme situations going well beyond the disagreements of ordinary democratic politics. He particularly emphasised the need for compliance (by judges as well as citizens) with rules that are considered to be unjust, though not grossly so.

Legal rights enjoy peremptory force in virtue of mutual civility. They should not be equated with the “absolute” rights of the natural law tradition. Mutual civility finds expression in many ways, but one of them is the rule-based character of laws and the willingness of all citizens (judges included) to respect that character. An understanding of, and respect for, the rule-based character of law should be central to any decisions regarding the law-making effect of a statute, or a constitutional document: for how can one determine the law-making effect of such a document without considering the essential nature of law?38

One of Radbruch's contemporary defenders is Robert Alexy, who is also the author of by far the most influential monograph on rights in the German Basic Law, a monograph that has exerted a huge influence upon the global model of rights more generally.39Yet, in spite of his defence of Radbruch, Alexy seems to forget a large part of Radbruch's message when he turns to the subject of constitutional rights. For Alexy argues that, in applying proportionality doctrine, no weight is to be attached to the fact that the allegedly offending enactment has indeed been published as a law by the proper law-making authority. To give the mere positivity of the law any weight in this context would, in Alexy's view, negate the priority of the Constitution over ordinary parliamentary legislation.40

Alexy's view is clearly question-begging, since it simply assumes that the proportionality doctrine, unmodified by any distinct concern for the need for certainty in law, is an appropriate test of constitutionality. Yet that is the very question in issue. Sound or not, Alexy's argument is influential and shows us the way the wind has been blowing, for a very long time.

Judges have been faced with the task of interpreting and applying constitutional documents which appear to create constitutional rights with one hand and then abrogate them with the other. This situation is perhaps regrettable. The documents might have been construed differently, as requiring genuine pursuit of legitimate state objectives rather than as inviting a judicial assessment of competing values.41 Possibly, the relevant documents should have been drafted along different lines so as to facilitate the courts in giving constitutional rights hard edges and peremptory force. More probably, the idea of judicially enforced constitutional rights, framed by reference to fundamental protected interests, is attractive in the abstract but proves to be flawed when we consider the problems surrounding its implementation. The current situation, however, is unlikely to be reversed. So what should the judges now do? How should the judges interpret the various constitutional documents that gave rise to the global model of constitutional rights? My principal aim in this essay is to offer an analysis of the current situation and its illusions, not to prescribe solutions. But I might justly be criticised if I were to say nothing whatever about possible strategies for ameliorating that situation. The remarks which follow are therefore sketchy and speculative in intent.

One thing that judges might try would be to arrest the radiating effect of rights and give each right (and, consequently, the proportionality test) a narrowly limited domain. This would avoid the destabilising effects that constitutional rights can at present have upon practically the entire body of laws. Since we disagree about justice, a great many laws can (not wholly unreasonably) be challenged as unjust; and such challenges can always be framed as arguments about proportionality, provided that some of the interests encroached upon can be brought within the scope of a constitutional right. Attempts to restrict the scope of rights will, of course, face serious problems. But the problems may not be insuperable, and some attempt in this direction should be made.

Alternatively, or additionally, judges might try to develop, through their decisions on proportionality, a clear body of rules (reflecting Alexy's “Law of Competing Principles”) and not simply very general balancing guidelines. Judges might in this way acknowledge their duty of fidelity to the idea of law, understood as a system of rules and rights (both constitutional rights and ordinary legal rights) with peremptory force. They would contribute to the maintenance of a legal tradition within which determinate rules and doctrines are central: what Finnis has described as “the vast legal effort to render the law … relatively impervious to discretionary assessments of competing values”.42 The development of such rules, however, will inevitably be the slow growth of time if it occurs at all; and, while time passes, the judges may become increasingly accustomed to, and comfortable with, their new and more free-wheeling role. As explained above, judges could easily avoid creating such rules and might well be expected to cling tenaciously to the power that they enjoy in the absence of such rules.

Finally, and particularly if (as is quite likely) the above strategies prove to be too difficult to implement, judges might replace the proportionality test with what might loosely be thought of as a test of gross disproportionality or (perhaps better) gross injustice.43 In other words the question should not be “is this law unjust?” but “is this law so grossly unjust that no reasonable person could consider it to be just?”. This test should be construed as resembling the formula proposed by Gustav Radbruch, as his own proposal for avoiding a repetition of the horrors of the Third Reich. And, in the case of the German Basic Law and the European Convention on Human Rights, it would come closer than the present doctrine to capturing the original aims of the drafters, those aims being the prevention of a recurrence of abhorrent evil, and not the conferment on judges of a perfectly general power to review the justice of the laws. Radbruch's formula contemplated situations in extremis. It is unavoidably vague, but an objection grounded upon vagueness can scarcely lie in the mouths of those who advocate the doctrine of proportionality, which is no less vague and (in not being limited to extreme situations) of far wider scope and with far wider implications.

The virtues of a test of gross injustice, by comparison with the present law, are twofold. In the first place, it confines the impact of vague balancing tests to the extreme margin, leaving a broad swathe of ordinary political contexts where the rights conferred by statute or common law can enjoy genuine peremptory force without the constant risk of being overturned in a constitutional challenge. There can always be extreme situations where we are forced to choose between core values even though some of those core values may be of a kind that cannot without loss be integrated in a balancing or optimising framework. But, if the distinctive character of such values is to be preserved, one must try to ensure that the approach that is forced upon us in extremis does not become a feature of the value's diurnal role. Rights which possess peremptory force, but which may have to be set aside in situations of extremity, are not thereby reduced to optimisation requirements, or interests to be weighed in a general calculus of considerations.

Second, and very importantly, a doctrine along the lines of Radbruch's formula could represent a public articulation and endorsement of the value of mutual civility, rather than (as at present, under an unmodified proportionality test) a violation of mutual civility in the name of a supposedly perfect justice.

Some view me as pushing at an open door. I have been told by colleagues that a concern for truly gross injustice is what we have at present. Those who adopt this interpretation of the doctrine see the courts as already exercising the necessary severe self-restraint in applying the test of proportionality. I must confess that I do not share their understanding of current events or current doctrine. It is true that, in the law of the European Convention on Human Rights there has been talk of a certain “margin of appreciation”. But this is normally linked to claims concerning the need for local communities to judge their own needs and circumstances if perfect justice is to be achieved. I see no acknowledgement here of the demands of mutual civility, or of the fact that mutual civility demands a willingness to comply with (and to enforce) laws that some will, not unreasonably, consider to be unjust.

Others appear to be rightly concerned about the capacity of proportionality doctrine greatly to enlarge the power of the judges.44 Thus Kai Moller proposes a test of “reasonableness” as opposed to “correctness”.45 But proposals of this sort, by working within the general framework of proportionality doctrine, appear to rest upon an endorsement of the idea that rights are optimisation requirements rather than peremptory constraints. They may seek to check the dangerous growth of judicial power, but they nevertheless do so within an intellectual framework that is in danger of obliterating the distinctive character of rights. The approach that I am advocating, by contrast, wholly rejects the idea that rights are optimisation requirements, while acknowledging that the binding force of rights is dependent upon a degree of mutual civility being respected and maintained. Outside of extreme situations of truly gross injustice, ordinary legal rights can then continue to enjoy peremptory force. Constitutional rights should be understood as providing a framework of positive law within which the issue of gross injustice can be addressed.

There are those who will say that evil must be nipped in the bud, and that this requires the courts to intervene as soon as the law appears to depart from justice: one cannot afford to wait for the evil to reach a truly gross level. But those who argue this way allow the fear of evil to become an evil in itself. They abandon the attainable virtue of mutual civility in pursuit of an ideal that fails to acknowledge the broad scope of reasonable disagreement. We do not inhabit the Garden of Eden, but a fallen world where we disagree. Nor do we seek eventually to find our way back to Eden. Rather, we willingly accept the burden of our humanity, and seek to make our habitation in full acknowledgement of our limitations. We aim to establish and strengthen the bonds of friendship within a world where individual reason is an imperfect guide. These are the basic facts of the human condition which require from us the virtue of mutual civility, and which make that value of greater relevance than perfect justice.

We should be careful not to place at the heart of our law and politics an institutional violation of mutual civility, whereby those with power (in this case, the judges) are willing to employ that power to overturn the reasonable, even if somewhat misguided, judgments of their fellow citizens. For, if we do that, how can civil compliance be expected of our citizens? What value can the judges invoke, as a basis for the binding force of their own (frequently contestable) decisions, when those decisions appear to deny the possibility of reasonable disagreement concerning justice?

If laws are disobeyed (whether by citizens or judges) on the grounds of their injustice (as opposed to gross injustice of a kind that violates mutual civility) this must be as a well-judged act of civil disobedience designed to draw attention to the law and combined with a willingness to accept the resulting punishment, or other consequences (resignation being the appropriate course of action for judges), as entirely legitimate. Civil disobedience can in this way be fully compatible with, and even serve to reinforce, the value of mutual civility.

The institutions which embody and express mutual civility are a product of artifice, informed by time and experience. Consequently, there is no blueprint for liberal democracy, and certainly not one that can be arrived at by pure theoretical reflection. For this reason I do not offer a set of detailed prescriptions, but merely some suggestions concerning the way in which our present unhappy situation might be ameliorated. Nevertheless there are certain aspirations which should shape the character of a liberal democracy. If I had to identify some of those aspirations I would say that they include (1) the rule of law, understood in a relatively austere way as governance by rigorously enforced rules compliant with Lon Fuller's eight requirements; (2) secure rights with peremptory force (itself a consequence of the rule of law understood in that austere sense); and (3) the practices of mutual civility, understood as requiring, amongst other things, respect for and compliance with established laws which we may consider to be of imperfect justice. All of these aspirations, it seems to me, are endangered by the currently influential model of constitutional rights.

Footnotes

1 Walzer, M., “Liberalism and the Art of Separation” (1984) 12 Pol.Theory 315CrossRef | Google Scholar.

2 Tawney, R.H., quoted in Rogan, T., The Moral Economists (Princeton and Oxford 2017), 47Google Scholar.

3 Prohibitions del Roy (1607) 12 Co.Rep. 64, 77 E.R. 1342, [1607] EWHC K.B. J23.

4 See Rawls, J., Lectures on the History of Moral Philosophy (Cambridge, MA 2000), 52Google Scholar.

5 A blurring which is encouraged by the most influential theories of law. See note 38 below.

6 See Moyn, S., The Last Utopia (Cambridge, MA 2012)Google Scholar.

7 Such a semblance of commensurability may consist in no more than a formally structured requirement that one should assess the “importance” of different values, or the “seriousness” of various possible encroachments upon such values. This is a characteristic feature of the doctrine of proportionality which now forms an integral part of the law of constitutional rights.

8 Alexy, R., A Theory of Constitutional Rights, translated by Rivers, J. (Oxford 2002)Google Scholar. Reliance upon the language of “optimisation” (or similar language) need not involve a direct denial of the diversity of forms of value. Rather, the language can be deployed in such a way as simply to abstract from the relevant differences. But such abstraction is itself an implicit denial of the importance of those distinctions.

9 Rawls, J., A Theory of Justice, revised ed. (Oxford 1999), 4Google Scholar.

10 See Simmonds, N., Law as a Moral Idea (Oxford 2007), 104–09Google Scholar.

11 The history and significance of this emergence is much disputed. See Brett, A., Liberty, Right and Nature (Cambridge 2003)Google Scholar; Tuck, R., Natural Rights Theories (Cambridge 1981)Google Scholar; Tierney, B., The Idea of Natural Rights (Grand Rapids, MI 1997)Google Scholar; Strauss, L., Natural Right and History (Chicago 1953)Google Scholar.

12 Maitland, F.W., A Historical Sketch of Liberty and Equality (Indianapolis 2000), 90Google Scholar.

13 Williams, B., In the Beginning Was the Deed (Princeton 2005), 64Google Scholar. We might wish to correct Williams's formulation in one respect. Rather than saying that one who denies a right to the right-holder “does wrong”, it would perhaps be better to say that the right-holder “is wronged” when their right is denied to them. Both formulations make it clear that a right is not simply a good to be optimised. But the latter formulation is compatible with the view that there may be situations where the violation of a right is justifiable, in spite of being a wrong to the individual concerned. This helps to distinguish rights with peremptory force from the absolute rights of the natural law tradition. There is a further respect in which legal rights possess peremptory force without being absolute: their binding force is dependent upon their basis in mutual civility. See note 21 below.

14 Here I ignore certain complexities. For example, rights hold against other juridical persons. Thus I may have a right as against my neighbour but not in relation to some governing authority that requires planning permission for the planting of tall trees. Furthermore, rights can be Hohfeldian powers or immunities rather than claim-rights or liberties. Like claim-rights and liberties, powers and immunities are peremptory with respect to the issues that they govern. None of this affects the general point being made in the text.

15 Dworkin, R., Taking Rights Seriously (London 1977)Google Scholar, ch. 2.

16 Hence the French doctrine of “abuse of rights” has sometimes been regarded as an illiberal subversion of the entire notion of a right: see Lawson, F.H., Negligence in the Civil Law (Oxford 1950)Google Scholar. But see MacLeod, A.J., Property and Practical Reason(Cambridge 2015)CrossRef | Google Scholar, chs. 6, 7.

17 Fuller, L., The Morality of Law, revised ed. (New Haven 1969)Google Scholar, ch. 2.

18 See Simmonds, N., “Law as an Idea We Live By” in Duke, G. and George, R. (eds.), The Cambridge Companion to Natural Law Jurisprudence (Cambridge 2017)Google Scholar; Simmonds, Law as a Moral Idea.

19 MacCormick, N., Legal Reasoning and Legal Theory, 2nd ed. (Oxford 1994)CrossRef | Google Scholar, xi.

20 Alexy, A Theory of Constitutional Rights, p. 54.

21 As will become clear later in this essay, legal rights with peremptory force should not be equated with the absolute rights of the natural law tradition (rights which must in no circumstances be encroached upon). Theocentric natural law positions can argue that the future of the world is God's responsibility, while man's responsibility is one of obedience to God's law. But, in the absence of a belief in divine providence, a belief in absolute rights can seem puzzlingly fanatical. Legal rights are not absolute but bind in virtue of the value of mutual civility. When mutual civility genuinely breaks down, or the limits of mutual civility are exceeded, legal rights lose their peremptory force. See also note 13 above.

22 Jeremy Waldron has recently remarked upon the “drastically unmediated proximity” that obtains between individuals when they ascribe only instrumental importance to existing political structures. See Waldron, J., Political Political Theory (Cambridge, Mass.,2016), 15CrossRef | Google Scholar. We might think of this “unmediated proximity” as the absence of mutual civility.

23 See Simmonds, N., “The Bondwoman's Son and the Beautiful Soul” (2013) 58 Am.J.Juris. 111CrossRef | Google Scholar.

24 Moller, K., The Global Model of Constitutional Rights (Oxford 2012)CrossRef | Google Scholar.

25 This is reflected in the idea that even those rights which might seem to impose only negative duties nevertheless require states to take positive steps to protect the relevant interests. Amartya Sen argues that, when rights are conceived of as defining or restricting permissible actions (rather than in terms of desirable outcomes), the rights conferred must nevertheless be selected by reference to their probable outcomes and are therefore parasitic upon the identification of desirable outcomes: Sen, A., The Idea of Justice(London 2009)Google Scholar, ch. 14. Even if this is true (which I doubt) it does not alter the fact that rights defined by reference to permissible and impermissible actions (or choices) can be given peremptory force, while the ascription of such force to rights defined by reference to outcomes is likely to be very problematic.

26 Alexy, A Theory of Constitutional Rights, p. 54.

27 Beatty, D.M., The Ultimate Rule of Law (Oxford 2004), 41CrossRef | Google Scholar. It must be conceded that the US Supreme Court (Beatty's example of a rule-based approach) has not been very successful in articulating and adhering to such rules.

28 See note 8 above.

29 The likelihood of any such organic connection is considerably reduced by the fact that the bulk of ordinary legal rights are rights to specific actions: liberties to perform actions, or claim-rights to the performance of such actions by determinate others. Constitutional rights, by contrast, tend to be rights to independently describable states of affairs, or to the performance of an indeterminate range of actions by indeterminate others. I include some further remarks on this (and other related matters) in “Constitutional Rights and the Rule of Law” (2016) Analisi e Diritto 251.

30 Huscroft, G., Miller, B. and Webber, G. (eds.), Proportionality and the Rule of Law (Cambridge 2012)Google Scholar, 1.

31 Webber, G., The Negotiable Constitution (Cambridge 2009), 4CrossRef | Google Scholar.

32 Moller, The Global Model of Constitutional Rights, pp. 73, 5n.

33 Aristotle, Nicomachean Ethics, Book V.

34 See Finnis, J., Natural Law and Natural Rights, 2nd ed. (Oxford 2011)Google Scholar; Finnis, J., Collected Essays, Volume 4: Philosophy of Law (Oxford 2011), 12CrossRef | Google Scholar.

35 As noted by MacCormick, Legal Reasoning and Legal Theory; and Finnis, Natural Law and Natural Rights.

36 “(I)n complex societies, law is the only medium in which it is possible reliably to establish morally obligated relationships of mutual respect even among strangers.” Habermas, J., Between Facts and Norms, translated by Rehg, W. (Cambridge 1996), 460CrossRef| Google Scholar.

37 For the best defence of Radbruch's position, see Alexy, R., The Argument from Injustice (Oxford 2003)Google Scholar.

38 In this essay, in the interests of simplicity, I try to avoid becoming entangled in the philosophical debate surrounding law's nature. It is, however, worth making a few remarks by way of clarification. In recent decades legal education has been influenced by a theory which claims that the interpretation and application of texts such as statutes and constitutions, beyond their “core of settled meaning”, involves open-ended policy choices. The approach rests upon a denial of the reflexive character of law (i.e. the need for doctrinal legal thought to be guided by reflection upon the idea of law). That denial, however, is misguided (as I have endeavoured to demonstrate in some of my other writings). A judge seeking to give effect to a statute or constitution must ask what the law-making effect of that document might be, and this necessitates reflection upon the nature of law. General policy considerations, if unconnected to the essential nature of law, are not, in themselves, pertinent in this context. On the other hand, the maintenance of law's peremptory force, and the avoidance of its collapse into a system of official (judicial) discretion, is of central importance. The judge's duty of fidelity to the idea of law (which is one manifestation of the duty of mutual civility incumbent upon every citizen) therefore requires the judge to seek an interpretation of constitutional rights that preserves, so far as possible, the peremptory and rule-centred character of law.

39 Alexy, A Theory of Constitutional Rights.

40 Alexy, R., “Comments and Responses” in Klatt, M. (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford 2012), 331Google Scholar.

41 Such an interpretation is in many ways the most natural one to adopt. While undoubtedly creating problems of its own, it does at least focus judicial attention upon the issue of outright evil, and acknowledges the moral priority of mutual civility over this or that contestable idea of perfect justice.

42 Finnis, Natural Law and Natural Rights, p. 319.

43 The term “gross disproportionality”, although I have employed it elsewhere, is less than ideal since it appears to imply a continued reliance upon the proportionality approach as conceived in the current doctrine, with the latter's implicit suggestion of some form of commensurability or monotonic comparison. For this reason, the term “gross injustice” is preferable.

44 Meanwhile, many celebrate and seek to extend that power by invoking the image of a “dialogue” between the courts and the legislature. The image gains plausibility from the fact that adjudicative reasoning should properly be guided by an assumption that the established rules serve some coherent conception of justice. This is a feature of adjudicative reason that Dworkin has chosen to describe in terms of “collaboration” and “partnership”: see Dworkin, R., Justice for Hedgehogs (Cambridge, MA 2011), 136Google Scholar. But (as was pointed out above) it is the object of constitutional rights to provide a point of critical leverage upon established rules, not to explicate the conception of justice implicit within such rules. In this context, courts function as the critical censors of the legislature, not as their dialogic partners in a common project.

45 Moller, The Global Model of Constitutional Rights, ch. 5.

#law #civility #custom #artifice #narrative #constitutional rights #civil rights #constitutional law #communication #politics #rule of law #moral rights #justice #liberalism #free expression #liberal society #norms

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rolandfontana · 5 years

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National Security Telecom Purchase Ban: Say What?

For more than a decade, China has blocked American tech companies from fully participating in China’s Internet boom. If you know China’s Internet-related laws for foreign companies and you have represented foreign companies trying to proft from China’s Internet, you know that in most cases, the reality for foreign companies has been much worse even than the laws. To put it bluntly, the way China treats foreign companies is what has prevented companies like Google, Facebook, Uber, Amazon, and even Apple (FAANG) from succeeding wildly in China. Those who believe it a coincidence that these five companies have done so well worldwide as compared to China either unintentionally or deliberately do not understand how China has treated these companies. Or, as the New York Times accurately put its in As Huawei Loses Google, the U.S.-China Tech Cold War Gets Its Iron Curtain:

The digital Iron Curtain has been long in the making. From its earliest days dealing with the internet, the Chinese government has squelched content it didn’t like. Today, the Chinese internet at first glance doesn’t look much like the one the rest of the world uses. It has different platforms, ideals and business strategies, all tended carefully by censors.

And just as the way China has treated foreign tech companies should come as no surprise to those who regularly do business with China, U.S. retaliation for that treatment has not come as a surprise to many in China:

Others in China point to the country’s own barriers against competitors as a strategy that was going to provoke retaliation sooner or later. At some point, the United States was bound to use reciprocity in dealing with a closed Chinese internet market. One popular blog post explained that reciprocity has been translated into “mutual benefit” in Chinese, which explains why many in China didn’t understand that the idea could be used in retaliation.

Another popular blog post drives the point even more clearly.

“You’ve been opposing the U.S. for many years,” said the headline. “You should be long prepared that the U.S. will oppose you one day.”

A large part (so far) of U.S. tech retaliation has been against Huawei, “a Chinese multinational telecommunications equipment and consumer electronics manufacturer, headquartered in Shenzhen, Guangdong, China …. founded by a former People’s Liberation Army officer.” See Wikipedia. The U.S. is action against China in two ways. The first is a ban on sales of technical products to Huawei, with the threat that this ban will be extended to other Chinese companies. The second is a ban on purchases of telecom products from Chinese companies, with Huawei as the probable initial target. I discussed the sales ban yesterday in The Huawei Sales Ban: Brrrrr. In this post I consider the purchase ban.

The purchase ban was implemented by an Executive Order issued on May 15, 2019, entitled Executive Order on Securing the Information and Communications Technology and Services Supply Chain. In the Order, President Trump declares a national emergency to counter “foreign adversaries” threatening the U.S. telecom sector by selling certain telecommunications products to persons located in the United States. Under powers granted under the International Emergency Economic Powers Act (IEEPA), President Trump ordered the United States Department of Commerce to issue rules to prohibit the import of offending products into the United States.

The U.S. administration has been working to impose a ban on imports of telecom products from China’s Huawei and this Order is generally seen as the final implementation of that plan. This order goes well beyond just prohibiting the U.S. government and its agencies from buying Huawei telecom products; it will impose a general ban on purchasing such products by any U.S. person/entity. It is an absolute, nationwide ban.

The Order itself does not refer to Huawei specifically. It refers only to “foreign adversaries” and it gives the Department of Commerce 150 days to publish the foreign adversaries list. We can though assume for now that at a very minimum Huawei will be on that list.

This then means, for example, that rural U.S. telecoms that rely on inexpensive Huawei telecom equipment will be forced to find an alternative supplier. The media is reporting (and I believe rightly) that the result of this ban will a major blow for rural American telecom companies, since no alternative supplier that meets their needs has been identified.

There is much that is not clear about this Order. The uncertainty is at least party due to the fact that this appears to be the first use of the IEEPA national security sanction involving the sale of a commercial product. The 30 Existing IEEPA national security sanctions are listed by the Department of the Treasury on its Sanctions Programs list here and a quick review of those sanctions shows they fall into the more traditional notion of what constitutes a foreign based national emergency. Prohibiting the purchase of Huawei products does not fit easily into the tradition of sanctions under the IEPPA program. This means how this sanction will be applied is uncertain.

The next thing apparent from reviewing the sanctions list is that no country in Asia other than North Korea had previously been placed on it. If, as expected, various Chinese companies, including Huawei get placed on this list, China will be joining pariah regimes such as Russia, Iran, North Korea and South Sudan. This will significantly alter the U.S. relationship with China from business adversaries to political adversaries. This is a major event and it should be seen that way in the United States, particularly since it is not clear there is a general consensus in the United States for placing China in this category.

The following additional open issues are more technical but also significant:

1. The Order requires the Department of Commerce to designate the specific foreign adversaries that will be subject to the U.S. purchase ban. As stated in the Order, a foreign adversary can be a nation state, a company or an individual. It is almost certain Huawei will be listed as a foreign adversary. What is not known is whether other Chinese companies such as ZTE will also make the list. Will the entire PRC be placed on the list? Will entities and countries outside China be placed on the list? At this time we just do not know.

2. The order states its goal is to protect the United States in the following sectors:

— Information and communications technology

— Critical infrastructure

— Digital economy

— National security

As I have noted above, this list goes far beyond any previous uses of the IEEPA. The list moves from the classical definitions of national security to purely economic spheres such as the digital economy. Whatever anyone thinks of that broadened scope, the fact is the U.S. has no experience with this type of regulation coming from an executive order. For that reason, we do not know what its immediate impact will be or its impact in the future. Will the U.S. government eventually convert all economic conflicts with foreign competitors into national emergencies?

3. Though the Order is couched in terms of telecom equipment, its definition of impacted technology is very broad:

(c) the term “information and communications technology or services” means any hardware, software, or other product or service primarily intended to fulfill or enable the function of information or data processing, storage, retrieval, or communication by electronic means, including transmission, storage, and display.

This definition can apply to virtually any modern electronic product. Obviously, it applies to the telecom switches sold by Huawei to the rural telecoms in the U.S., but it also applies to Huawei smartphones. More significantly, it can be read to apply the Internet of Things (IoT) devices that are incorporated in the huge variety of “smart products” currently being imported from China and the rest of the world. Much of the work I and the other China lawyers at my firm have been doing for the last five years has involved IoT devices.

Consider the IoT issue. Say the U.S. designates China as a whole to be a foreign adversary. And say the U.S. follows the clear language of the definition to include IoT devices as products that fall under the purchase ban. Designating of IoT devices as a security threat would not be far fetched. Bruce Shneier outlined the threat from IoT in his recent book Click Here to Kill Everybody. The State of California has recognized this threat by promulgating IoT security rules. Yesterday, the U.S. Department of Security warned of Chinese made drones of secretly gathering up and sending back sensitive military information to China. See DHS warns of ‘strong concerns’ that Chinese-made drones are stealing data. Our China lawyers have done probably at least a half a dozen transactions involving Chinese drones and I mention this to show the extent of the impact this ban might have.

A vast number of products imported from China contain an IoT component. A huge number of the electronic devices imported from China implement a feature that allows it to be controlled by a smartphone or laptop. If the Order is enforced in a completely consistent way and IF the entire country of China is designated as a foreign adversary, a huge list of electronic products imported from China will be banned from sale to the United States. Even if this will not be the immediate impact of the Order, the threat remains that the Order could be expanded at any time to have this impact.

Note also that there is no way to avoid this result. The ban follows the component. It will not work to move production to a neutral country and then have the component shipped from China and incorporated into a product made in that third country. The ban follows the specific IoT (telecom) component. In a world of interlocking supply chains, determining the source of each and every critical component for each and every electronic product produced from each and every country in the world will be overwhelming.

The end result of this Order is uncertainty and risk. Initially, the risk comes from direct purchases of telecom products from China. But as the process works out, the risk may infect the entire world trading system. The final result is hard to predict. What we can say, however, is what we have been saying for nearly a year: relations between China and the United States are on a straight-line decline with no end in sight.

National Security Telecom Purchase Ban: Say What? syndicated from https://immigrationattorneyto.wordpress.com/

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lindyhunt · 6 years

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Will We Use Big Data to Solve Big Problems? Why Emerging Technology is at a Crossroads

A couple days ago, my girlfriend and I had a debate (let’s call it a discussion) about caffeine.

I read that it decreases your appetite. She disagreed, saying that caffeine actually increases our urge to raid the fridge.

Who’s right?

It depends not only who you ask, but how.

This will sound obvious, but the way you phrase a Google search directly affects your results.

A question like, “does caffeine increase appetite” will boost the number of hits that link caffeine and hunger. The opposite is true if you include words like “decrease” or “suppress.”

Typing “how does caffeine affect appetite” or “caffeine and appetite” is your best shot at uncovering the truth — or at least what most researchers now understand to be true.

Our conversation highlights the fact that search engines aren’t objective. They’re tools designed for human use, and people are always influenced by their own beliefs, biases and experiences.

It’s easy to see how our worldview can sway familiar tools, like search engines, but the connection gets trickier — and more important — when we look at emerging technologies.

Artificial Intelligence (AI) and machine learning have now given ordinary citizens (i.e. those who aren’t necessarily rich or powerful) a disproportionate ability to influence people’s hearts and minds on a major scale.

We’re at a critical point in history, where we can collectively choose to use this technology for good, or to exploit people’s biases and belief systems.

A Spectrum of Opportunity

These are the early days of data science and machine learning. As both individuals and organizations start to experiment with emerging technologies, there’s a full spectrum of applications.

Atone end of the spectrum (let’s call it the far right), there’s the 2016 U.S. election. Almost two years later, we’re still learning how the Trump campaign used psychographic profiles to motivate voters.

Analyzing massive data sets enabled Trump’s team to create targeted Facebook ads, which reinforced some voters’ political and cultural beliefs. Many people see this as a misuse of increasingly powerful technologies.

Groups like DataKind live at the other end of the continuum. This data science community works with social change organizations to tackle challenges across education, poverty, health, human rights, cities, and the environment.

Most applications land right in the middle. Companies are learning how to use data and machine learning for capitalistic gains.

That’s not necessarily a bad thing. After all, most companies are incentivized to make as much money as possible to serve their employees, stakeholder, and/or founders. Data-enabled capitalism feels darker when companies use social platforms to pursue vulnerable people; to spread unhappiness.

We’ve always had advertising, but the niche targeting and sheer volume of data we encounter online is killing our attention spans. It’s also fuelling the need for instant gratification.

I lead the HubSpot team that’s building GrowthBot — a chatbot for marketing and sales. As you may know, a bot is an automated computer program designed to simulate conversation with human users.

It uses AI (a computer system that can perform tasks that normally require human intelligence) to process data. GrowthBot integrates with over a dozen systems and APIs to help people accomplish more with less distraction.

Are we using GrowthBot to make money? Yes. HubSpot is a for-profit business. At the same time, we’re building this technology to help people regain their focus. Everyone is overwhelmed with noise and data. Our bot works behind the scenes to conduct research, connect accounts, pull files and perform routine tasks, so users experience that elusive state of flow.

The Backlash Against Big Data

As technology leaps forward, there’s a growing backlash against machine learning. Some people think AI will be humanity’s downfall. Others are afraid it will replace their jobs.

I understand. We’ve all watched technology overhaul industries ranging from auto manufacturing to entertainment.

Yet, there are essential differences between people and machines. Computers excel at processing, storing and explaining data and information. Humans have the unique ability to develop insights, review data, determine next steps, and think creatively.

Computers can’t have “ah-ha” moments or come up with insights, just as humans will always struggle to store and process large amounts of data.

We can make the same distinctions about AI and algorithms. If you’re concerned about how they influence behavior, let’s clear up a common misconception: technology alone can’t change people’s hearts and minds.

Instead, it enables motivated groups (like the Trump campaign) to identify and potentially exploit our biases. Everything we share, search, like, and post online creates a comprehensive profile of who we are and what we believe.

Combine that with our social graph — the online networks we create and nurture — and data science can make surprisingly accurate conclusions about our deepest psychology.

For example, data scientists can predict (with a high degree of accuracy), whether someone believes in climate change, based on their support for the National Rifle Association (NRA).

How can we get smarter about machine learning?

As I said earlier, we’ve reached an important crossroads. Will we use new technologies to improve life for everyone, or to fuel the agendas of powerful people and organizations?

I certainly hope it’s the former. Few of us will run for president or lead a social media empire, but we can all help to move the needle.

Consume information with a critical eye.

Most people won’t stop using Facebook, Google, or social media platforms, so proceed with a healthy dose of skepticism. Remember that the internet can never be objective. Ask questions and come to your own conclusions.

Get your headlines from professional journalists.

Seek credible outlets for news about local, national and world events. I rely on the New York Times and the Wall Street Journal. You can pick your own sources, but don’t trust that the “article” your Aunt Marge just posted on Facebook is legit.

Search with open-ended questions.

Researchers have found that caffeine does not typically increase hunger. My girlfriend is usually right, but I guess it was my turn to win this debate. Bottom line: try to use the internet as objectively as possible. Use neutral words and open-ended questions. Don’t encourage biased links with your language.

Educate kids about online subjectivity.

Online literacy is increasingly critical. Kids of all ages (and even many seniors) need to understand how to do open-ended searches, how to vet information sources, and how to think more critically about what they see online.

Think beyond profits.

Maybe you’re a business owner who’s trying to integrate machine learning, bots or big data into your offering. Or, you’re a tech founder who’s actively working with AI. In either case, you have the opportunity to help us make new technologies more ethical, equitable and productive.

Look at text analysis software. We could be using this technology to analyze ancient history and learn how people evolved. Instead, we’re trying to correct grammar editors and suggest sales copy that converts browsers into buyers.

Clearly, there’s nothing wrong with those applications. They’re probably not hurting anyone. They could, however, move our world forward. Text analysis could help to crack the code on tricky social challenges.

If you have an opportunity to add value and enrich lives, make it happen. Do what you can to use data for good.

We’re All in it Together

Please know that I’m not giving myself or my company a pass here. I know that GrowthBot won’t cure cancer. But, we are working to help people focus, accomplish more, and realize their own genius.

If we can help a cancer researcher to stay deep in their work and discover new insights, for example, then we have achieved our goal.

AI and machine learning are still in their infancy. That’s why this moment is so critical. We can all influence how new technologies evolve. We can manage our own consumption and lobby to see big data used for constructive pursuits.

Learn what you can and watch what’s happening in politics, business, and in your own sphere of influence. Stay informed. I know it’s easy to feel overwhelmed or disillusioned, but we can’t afford to check out. We need your voice. We need your ideas.

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williammorrisonqut · 6 years

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Journalism Media Communication - Final Assignment

The topic of journalism, media and communication was made significantly more important during the rise of technology and globalization In the 21st century. But with the change into modern media, certain issues around broadcasting and media have become much more prominent. An overwhelming majority of Australian news outlets are now owned by foreign corporations. Due to this, the news presented by these corporations have the tendencies to be extensity biased, in addition to this, some of the news presented has even be fabricated to make the readers perceive a situation a certain way.

It is not a secret that much of international news corporations are owned by a handful of millionaire families which saturate the media, specifically the Murdoch family. The Murdoch’s rose to power in the 1950’s when Rupert Murdoch created his own private news company, News limited. From then on, Murdoch acquired many newspapers in not only Australia, but New Zealand as well before he expanded his company to the United Kingdom in 1969. Even though Murdoch moved to the United States in 1974, he still retained interest in broadcasting and news coverage in Australia and New Zealand. As times changed, the initial paper news started being replaced with electronic publishing technologies. By this time, Murdoch had acquired the world’s largest media companies such as Twentieth Century Fox. Due to the fact that this was one of the world’s largest media outlets at the time, the Murdoch family now held significant power in the news and broadcasting industry. By 2000, Murdoch effectively owned over 800 companies in over 50 countries essentially creating an oligopoly with its main competitors: Time Warner Inc., Viacom Inc., and Walt Disney Company. Due to the fact that these large corporations have had an oligopoly on the worldwide news outlets, broadcasting from these particular organizations can tend have particular bias toward certain topics in addition to the fact that some of the news has even been fabricated.

Due to the high concentration of media ownership of a few companies, the threat of bias news is always an issue. It can be argued that during the Iraq war, Rupert Murdoch’s ownership of the media essentially influenced the sending of troops to Iraq. In the wake of the 9/11 attacks, media outlets such as Fox news took an aggressive stance against and a pro war approach against Iraq and Hussein. A Fox news report on September eleventh, 2001 quotes the reporter saying, “This night, America is under attack by Iraq forces…” (Fox News 2001). This idea that corporations owned by Murdoch would take an aggressive stance against is corroborated with an idea put forward Roy Greenslade, professor of journalism at City University, who believes that “Rupert Murdoch argued strongly for a war with Iraq in an interview this week. Which might explain why his 175 editors around the world are backing it too” (R.Greenslade 2001). Throughout the article, Roy suggests Murdoch and his bias toward the war played a large part in which the way in which it was reported and received by the population. As Murdoch held such a large majority of major media outlets at the time, majority of the news reported on the topic was obviously obliged to reflect the bias views of Murdoch’s. By reporting pro war and anti-Iraq propaganda throughout the period of the war, Murdoch managed to essentially brainwash people into blindly supporting sending troops into Iraq. In this situation, major media companies outweigh the voices of the public sphere. If the media wasn’t saturated by pro war biased, people would have the ability to form their own opinions and make a reasonable conclusion as to which course of action should be taken. A study conducted in 2003 by Frank Newport demonstrated that 76% of Americans approved of taking military actions (Gallup 2003). Whereas after the war concluded a report done by CBS in 2016 displayed that 83% of Americans regret sending troops into Iraq (CBS 2016).

Media bias can be seriously dangerous due to its ability to influence people’s views without providing them with all the facts and figures on the situation. In 2017, author and activist, Lee Ann Crosby, wrote an article on the dangers of media bias where she clearly sums up the issue and dangers of bias in the media. “Everyone has their own ideas, beliefs, and opinions. Media-consumers choose to stand behind specific outlets and decide which information they see as “true.” As it has many times in the past, today’s media takes advantage of this reality to forward their agendas” (L.Crosby 2017). Crosby’s essentially arguing that majority of media companies subtly push their agenda by the stories that they cover – only covering the stories that will support their views and opinions. In addition to this, Professor of communication at the University of Pennsylvania, Nicholas Wishek agrees with Crosby’s statement in regard to the idea of media bias by saying “That places the American values that made our country special at risk because it increases the possibility of a one-party political system. Such political systems are seldom free” (N.Wishek 2016). Wishek believes that if we allow our society to be dictated by bias, one sided reporting and political views, we will end up with a one-party government which essentially ruins the idea of a democracy as there is no competition whatsoever. Steven N Czetli, journalist and author published a document on how to avoid being convinced by media bias. He says “If you really want to understand something I strongly suggest you Google it and pay attention to the many sources that pop up. Restrict yourself to the most reputable print sources that pop up and read them all. Avoid notably biased, thinly capitalized rags like Breitbart News and whatever their libertarian counterpart is” (S. Czetli 2016). Steven, like me, believes that by doing research on the topic you will are guaranteed to form a non-bias, reasonable opinion.

On the topic of bias in the media, it is important to use reputable sources when writing a report. If the report has one sided facts, it is assured that the report will be unreliable as it doesn’t address both points of view. It is also important to use reputable sources with valid credentials to ensure the most accurate, factually correct report possible. The failure to report properly by reporting facts with both sides of the argument is clear in the reporting of the 9/11 attacks. Rupert Murdoch wanted to go to war with Iraq so he made sure that all reporting from his companies was one sided and partially inaccurate. By doing this he instilled a sense of patriotism and nationalism, rallying the country against Iraq. This also demonstrates how dangerous bias reporting can be.

In addition to bias news reporting, there is also prospect of ‘fake news’ occurring in the media. Fake news is much like bias reporting but majority of the information is fabricated. Fake news is defined as “fabricated news written and published with the intent to mislead in order to damage an agency, entity, or person, and/or gain financially or politically” (Ganon University 2016). Not often distributed by mainstream news corporations’, fake news is usually spread via social media. The aim of fake news is to either attract click revenue or tarnish the name of an individual or organization. As one of the most powerful people in the world, Donald Trump consistently throws around the term ‘fake news’ when someone opposes him, but some of the time, the news was not even fabricated, it just simply opposed Trump and the president didn’t want to respond to the allegations. One of the most notable instances of Trump claiming, ‘fake news’ was when he was described as a sexist and perverted as he describes his own daughter as ‘voluptuous’. Needless to say, he denied the allegations by claiming they were ‘fake news’.

When writing a report, it is important to locate and disbar any falsified news sources. By doing this, it will ensure the most accurate report possible. It is also important to note that just because there is an opposing opinion, that doesn’t make them wrong, it means that the topic is open for discussion. Saying this, I believe that the future of the media should consist of open, factual, intelligent discussions to ensure that a just outcome is guaranteed.

As much as I believe that the best future for the media is open, valuable discussion, it looks like the future of the media lies in the hands of powerful business owners such as Rupert Murdoch and social media platforms like Facebook. I believe that small news corporations are going to be phased out or even bought out by larger companies, paving the way for the Murdoch dynasty to spread personal agendas. In addition to this, social media platforms like Facebook and Twitter will only grow in size due to the forever changing technological world. As I am hoping to pursue a career in journalism, I believe it is extremely important to know the difference between real news, fake news, and bias news. In addition to this, I also believe it is important to realize that certain news corporations’ report on things that are bias and written to make me perceive a situation a certain way. If I ever become a journalist, I hope that I would be able to achieve my goal always reporting facts, not opinions. To become more well versed in the industry of journalism and media communications, I will have to read more articles to keep myself up to date with modern news. But not only read from one outlet, but a variety of different sources reporting on the same topic. By doing this, I can corroborate the evidence and draw a valid and accurate conclusion. Accurate journalism is the way of the future. By reporting things accurately and in a non-bias fashion, people will be able to form their own opinions, free from any influence that would make them think a certain way. In addition to this a large difference in society. Society needs to free itself from letting falsified and bias news dictate our views and opinions. If we let people like Rupert Murdoch influence our views, the world will erupt in dismay- just as it did during the Iraq war.

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ascendingmatrix · 6 years

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DEMYSTIFYING US AND ISRAELI POWER

Posted by stevew | Feb 2, 2018 | 2018, Conspiracy, Cabal, and Government, Daily Blog

Demystifying US and Israeli Power

By Susan Cain and Mark Mason

Government is the entertainment division of the military-industrial complex. ~ Frank Zappa

January 31, 2018 “Information Clearing House“ – If paying attention to the mass media, one would think that politicians have power, that the President of the USA has power, or even that AIPAC has power — They don’t. He doesn’t. AIPAC doesn’t. Few people understand American imperial power because it’s difficult to comprehend the unprecedented concentration of vast wealth in the hands of a few dozen individuals, and the ramifications for the rest of the world. Never before have so few people possessed so much wealth, and thus so much power over everything, including the US government, Israel, AIPAC, and — everything within the imperial American sphere of corporate influence. The Earth is under the control of a few hundred corporations, and a few thousand capitalists. The apparent power of AIPAC to influence US policy is based upon the intense media presence AIPAC does have while real power remains present but pushed into the media background. In this paper, we examine the power relationship between the USA and Israel. We present evidence supporting the claim that state power is subordinate to corporate power, and corporate power is driven by the rewards of expanding profits through manipulating state policies. US transnational corporations, particularly those assigned to the military-industrial complex (MIC: arms manufacturers and others engaged in military and police-state support) join banks and other corporations at the top of USA political power. We remind ourselves that in the USA and Israel, money is political power, not religion or the people.

The US corporate-state is an imperial system comprised of and dependent upon multiple public-relations illusions, hardly none more accepted than the frequent claim that Israel controls US foreign policy. Proponents of this claim include, among others, Grant F. Smith of the Institute for Middle Eastern Policy and more generally the BDS movement (boycott, divest, and sanction), two which apply attention to AIPAC ascribing to AIPAC the power to control the USA Congress. [1]

The Israel-controls-the-US argument asserts that manipulation of the US Congress is achieved by the force of rhetoric, controlling US media, and through lobbying monies funneled through AIPAC (the American Israel Public Affairs Committee, pro-Israel lobbyists in Washington who work to strengthen ties between the two countries in support of Israel). We entertain the question, does Israel control US Middle East policy? The illusion of Israeli political power is promoted by most of the actors who present this stage show to us such as members of Congress, the White House and its cabinet members, department heads, and the Israeli government itself from the top down — the Prime Minister, President, and members of the Knesset. Not only do mainstream media journalists pander to and spread this myth, but also many of our best investigative journalists in alternative media never question this claim. All states serve the interests of a privileged class. When we examine the service Israel and AIPAC provide to US corporate imperialist goals, the value of creating a mythical robust independent Israeli state is revealed.

As pointed clarification, it is useful to present an overt disclaimer, that Jews and Judaism are religious doctrines which demand the respect and protection of free speech and freedom of religious belief. Our concerns are directed toward the policies and actions of the state of Israel, a political institution fully open to examination and criticism, as is a universal truth. All states are subject to policy evaluation. Debate regarding state policies are the core of Western democratic politics. Zionism attracted the US wealthy ruling class to the “Israel Project.” Zionism is a combination of Euro-American classic military settler-colonialism and modern corporate neocolonialism. It goes like this: kill and kick out the native peoples, blame the victims, label them savages or barbarians or terrorists, steal the land and the natural resources, claim religious justification, truth, justice, and democracy, use as a base for boundless imperial expansion and interference into neighboring countries in the name of national security. Zionism compliments Western European and American capitalist imperialism, and poses as a useful ideological cover for corporate invasion. Understanding US power dynamics is instructive. If Israel were not such a profitable enterprise and excellent cover for US actions, US support for the client state would end. This illusion has nothing to do with religion or anti-Semitism. US foreign policy toward Israel is not substantially different from that of US policy towards Saudi Arabia or Egypt. The US government is looking for power and profits, through the force of a corporate invasion, following on the heels of military invasion. Invasion by force can be direct, as in the Iraq invasion of 2003, or by proxy army, such as is the case for Israel, Egypt, and far-flung South Korea. One can assemble the power pieces first, with the recognition that US government foreign policy is crafted, not by the US State Department, but by Wall Street banks, military arms manufacturers, high tech firms, pharmaceuticals, oil conglomerates, and other ancillary players in the US domestic corporate power system.

Israel is operating in many ways at the expense of Israeli taxpayers. Wages, building expenses and maintenance, and all the usual overhead costs associated with business/military operations are paid by Israeli taxpayers. US aid, grants, and gifts are used for equipment, munitions, and technologies, not operating expenses. Funds provided by the US are primarily for US corporate sales and net profits. Israeli taxpayers foot the bill for the overhead costs of their military.

Israel is a subsidiary, a brand-name logo to disguise US corporate imperialism. Israel is a neo-colonial outpost of the American Empire, operating as the US did when first establishing itself as a country on the North American continent — killing and kicking out the indigenous peoples, stealing their land and resources, and profiting from the takeover. Israel is an outpost of US banking and other corporations, and it serves as a land-based aircraft carrier for thinly-disguised US imperial expansion.

Strategic Benefits of a 51st State

When Israel bombs Palestinians and maintains a police state in both the West Bank and Gaza, the US reaps two benefits: 1) US elites and their corporations reap huge profits, and 2) the violence of the Israeli state acts as the local Mafia boss for the Middle East, maintaining obedience to Israeli power, and thus indirectly (because the USA is funding the Israeli violence) by association, what Israel says is what the USA says, without the US having to take direct responsibility for the war crimes and crimes against humanity perpetrated by Israel.

International power dynamics sets the US as near-global imperial power, funding client states such as Israel for the purpose of colonial expansion. It’s useful to conceive of Israel as the 51st state, united with the other 50 states comprising the USA. The Sun never sets on the American Empire. Israel is a covert branch of the US government, functioning as a massive military outpost but operating as a sovereign state in the Middle East, committing acts that would not be possible if they were “officially” committed by the US government. Per a July 2014 article in Haaretz, the “U.S. stores munitions in a classified location in Israel to which the Israeli army can request access – if Obama (or any current president) approves…”

“The War Reserves Stock Allies-Israel program (WRSA-I, sometimes referred to as the War Reserve Stock Ammunition-Israel program), which is capped at $1.2 billion, has a stockpile of missiles, armored vehicles and artillery ammunition…”

These are US owned and managed weapons and equipment stockpiles not only for use by the US army if a need for them arises in the region, but also by the Israeli army in cases of emergency. [2]

In September 2014, a bipartisan bill passed Congress which upgraded Israel’s status to a “major strategic partner” and allowed for a $200 million increase in the weapons stored in Israel. They must either reimburse the US for the cost of weapons used or replace them by buying new supplies. Whether the US is reimbursed or the weapons replaced, it is the US arms manufacturers who benefit from the requirements. [3] A brief but more detailed summary about the origins and uses of this program can be found in an August 2014 article of Politico. [4] Although this program initially required Israel to obtain US presidential approval before accessing this “Fort Knox of Weaponry,” the Politico article explains how a mid-level Pentagon bureaucrat, Keith Rowe, repurposed the WRSA-I, fashioning it more for the benefit of the Israelis and circumventing presidential approval. It is more accurate to say that the WRSA-I was tweaked so that it better-served US MIC interests. Israel more regularly depletes the supplies which equates to higher sales and profits for US missile manufacturers like Raytheon and other corporations that supply a wide variety of military and technical equipment which makes up the stockpiles of the WRSA-I. One should also note that Israel is not alone in having a WRSA-I program. A similar arrangement exists between the US and South Korea.

Iron Dome Dollars

Another cash cow for the MIC is our client state’s Iron Dome project, a missile defense system allegedly capable of destroying incoming missiles targeting Israel. Whether or not it is truly effective is not important. It’s an opportunity for US arms manufacturers and technology corporations to make billions of dollars in profit. According to a Times of Israel article in May, 2015, “Earlier this month, the US House of Representatives Armed Services Committee approved $474 million for Israel’s anti-missile systems. Included in the US-Israel cooperative missile defense funds is $41.4 million for the short-range Iron Dome rocket defense system, $165 million for David’s Sling, another short-range system, and the longer-range Arrow-3 missile defense programs, as well as $267.6 million in research and development funds.” That same article also states that the US State Department is set to approve a $1.9 billion arms sale package to Israel. It is important to note that “Israel receives $3 billion per year in US military aid, most of which must be spent on American-made arms.” [5] An earlier article appearing in Bloomberg’s business section confirms “The Israeli government has agreed to spend more than half the funds the Pentagon provides for its Iron Dome system in the U.S., bolstering the political appeal of the missile-defense system in America.” US corporation Raytheon, the world’s biggest missile manufacturer, is “under contract with Iron Dome’s Israeli maker, government-owned Rafael Advanced Defense Systems, to find suitable U.S. suppliers.” [6]

It is obvious that the primary purpose of our 51st state is to provide a huge market for the various industries of the MIC. The message to the public from mainstream media and Congress is that the US “gives” Israel billions of dollars of aid to benefit the Israeli state; their security and safety depend upon it. The truth is that the US gives taxpayer dollars to Israel which immediately return to the US in the form of corporate sales and profit, and the primary beneficiaries of this “aid” are US corporations of the MIC.

Making the 51st State Tow the Line

As more proof that it is US corporate interests controlling US foreign policy in Israel, eleven years ago Israel agreed to sell the Chinese technology to upgrade their drone aircraft. Page 21 of a Congressional Research Service study of US foreign aid to Israel tells what became of those sales, “As previously mentioned, Israel has become a global leader in arms exports and, over the last two decades, the United States and Israel have periodically disagreed over Israeli sales of sensitive U.S. and Israeli technologies to third party countries, most notably China. In 2005, the United States suspended Israel from participating in the development of the Joint Strike Fighter (JSF) and imposed other restrictions in defense ties because of Israeli plans to upgrade Chinese Harpy Killer drone aircraft. Israel ultimately canceled the sale.” [7]

The following cannot be stated too often because it is not a message that is found in any media: the message of US corporate media to the public is that we must help Israel to defend itself, that US and Israeli interests are connected, that we must defend the real (only?) democracy in the Middle East. However after examining who benefits from this relationship, one must conclude that what we “must” do is to support sales and profits for the US MIC at all costs. One must also conclude that it is not the Israelis who are in charge of the US/Israel relationship.

Follow the Money

Israel and AIPAC haven’t any real power although no one thinks to question how it could be possible for a country of 8.3 million to control 312+ million in the world’s dominant military and economic powerhouse, the US. Believers in this illusion of control cite money as the means by which the Israelis exert their “power” over the US. Per the Open Secrets Organization, AIPAC spent $3.1 million on lobbying Congress in 2014. [8] Very few candidates directly receive campaign contributions from AIPAC, less than $5,500 in 2014. However, the US defense industry contributed over $144 million to candidates in 2014 per Follow the Money Organization. [9] Lockheed Martin (manufacturer of the problem-plagued F-35 fighter jet) alone gave over $4 million directly to congressional candidates in 2014. [10] That is one million more than AIPAC spent lobbying Congress in the whole of 2014, and Lockheed Martin is only one of dozens of US military contractors lining the campaign coffers of our congressional “representatives.” General Electric coughed up $3.9 million for various candidates. [11] Honeywell International is known for its heating products but has a huge business in the aerospace and military industries, spreading out $5.2 million among various candidates. [12] Northrop Grumman, a military contractor specializing in “unmanned defense and surveillance systems” (drones), gave congressional candidates over $4 million in 2014. [13] AIPAC serves in deflecting attention away from the real centers of power. No one notices the vast amounts of money pouring into campaign coffers from US military corporate partners because AIPAC and its stage shows are guaranteed top billing in media.

Yes, it is indeed money that controls the US Congress, but not the paltry low millions of AIPAC. The US corporate sector, specifically US military contractors, gives 50 times more to Congress members than the campaign contributions and lobbying expenses combined of AIPAC.

However, it is true that AIPAC exerts a limited degree of control over the US Congress functioning as a cheap means to establish members’ obedience. They serve as a corporate sergeant-at-arms for the ruling class, ensuring that Congress keeps the MIC well-funded and highly profitable. AIPAC has been known to slander politicians during political campaigns, revealing inappropriate sexual liaisons and habits of candidates not fully supportive of the Zionist cause or branding them as either anti-American or anti-Semitic when possible. AIPAC campaigns against political candidates can be effective in securing their losses at the polls. The money that AIPAC spends in these endeavors is money that the corporate ruling class does not have to fork over to every individual candidate. It’s a cheap method to ensure a strong backing in Congress for US expenditures benefiting the client state and US military contractors.

The Primary Profiteers

It is the various corporations of the US Military-Industrial Complex that profit most from the client state. In Israel, the MIC has one of the most effective corporate trade shows in existence. Their latest arms, munitions, and technologies are dramatically demonstrated in very real combat expositions as Israel intermittently attacks Palestine in the Gaza Strip. After every Israeli military assault on Gaza, orders to US weapons manufacturers soar from dozens of interested buyers in governments worldwide. What better means of advertising than real-life demonstrations of the latest bombs or mortar rounds and launchers, the latest communications and surveillance technologies, the latest on-ground robots capable of searching around the corners of buildings for the “enemy?”

What Israel is doing to the Palestinians is not different substantively from how the US related to native Americans, Filipinos, Vietnamese, and too many other victims of US imperial aggression for profits. State power. Corporate profits.

It’s not only US corporations who profit from these arms sales, but also the arms manufacturers and military industries of many US allies in Europe and around the world. Even tiny Poland has military corporate interests along with the Netherlands. War and conflict is one of the biggest businesses in the world, and Israel supplies many of the profits for this enterprise.

Lockheed Martin is one of the biggest, but only one of dozens of such major US corporations benefitting from the client state. Others include Raytheon, Hewlett-Packard, Boeing, McDonnell Douglas, IBM, Caterpillar. For example, high tech Hewlett-Packard supplies computer software to the Israeli security forces, providing the development, maintenance, and installation of biometric technology used at dozens of Israeli checkpoints in the Gaza Strip and West Bank. [14]

Internationally, Accenture Ltd. of Ireland is a US military contractor servicing the US Defense Department’s needs for Electronic Health Records as a configuration specialist. [15] Fabrique Nationale d’Herstal (French for: National Factory of Herstal) in Belgium is a leading firearms manufacturer. They produce an array of hand guns, rifles, machine guns, and helicopter and aircraft weapon systems. Fabrique Nationale is a subsidiary of the Belgian Herstal Group, which also owns US Repeating Arms Company (Winchester) and Browning Arms Company. [16] There are plenty of “war bucks” to be made nationally as well as internationally. That fact probably accounts for the weak international response regarding the Israeli occupation of Palestine.

Bankers Will Be Bankers

The banking industry also profits from Israel, supplying countless loans to various US military contractors for expansion, research and development, and product materials. Investment bankers compile investment portfolios for their wealthy clients consisting of shares in businesses that service the US military. The banking industry in Israel made huge sums of money servicing American clients who wished to evade income taxes, hide property, and launder money back to the US for their clients’ use. Israel, the unknown offshore banking facility for many wealthy Americans. Israel’s second largest bank, Bank Leumi, was a preferred facility for many of them. Sam Antar was the CFO of an electronics corporation in the US called Crazy Eddie. He was prosecuted for and convicted of securities fraud during 1991 – 1992. In exchange for a cushy sentence, he testified against family members. He also informed both the SEC and FBI about the offshore banking business flourishing in Israel. He gave those agencies this information in 1989, but they did not act upon it until late 2014, allowing this criminality to continue another twenty-five years. Bank Leumi paid $400 million in fines, a mere slap on the wrist from a corporate standpoint, and has agreed to assist in investigating other Israeli banks. It will be interesting to see how or even if this investigation will be reported in US corporate media. [17, 18]

Israel, Corporate Money-Launderer

Israel is not only an investment bonanza for the wealthy ruling class, but also serves as a money-launderer for US taxpayer funds into corporate hands. The US government “gives” the client state X amount of foreign aid for military purposes. That aid is then immediately passed back to the US into corporate hands to purchase military equipment. US taxpayer dollars “indirectly” become sales and profit figures for US corporations using this method of laundering taxpayer money. The same is true when the US simply supplies such equipment to the client state. Taxpayer dollars are used to purchase the arms and munitions “given” by the US government to Israel. The billions that the US “gives” to Israel return to the US as corporate profit at the taxpayers’ expense. Corporations do not “give away” their merchandise. Someone pays for it, and in this case, it is the US government using taxpayer dollars to purchase military hardware and boosting corporate profits to unimaginable amounts.

Discipline For the Israelis

The Israeli government believes in its power over the US government and sometimes acts contrary to US dictates. It is said that no US president has ever defied the Israeli lobby, but that is not true. When the arrogance and “bad behavior” of the Israeli government become unacceptable to the real powers that be, the US government gives the Israelis a public spanking to remind them who is really in control of whom. George H.W. Bush withheld loan guarantees for three months from the Israeli government in 1991 due to their expansion of settlements in Palestinian territories, successfully forcing Israeli Prime Minister Yitzhak Shamir to attend the Madrid Peace Conference. George W. Bush, in 2003, threatened to withhold loan guarantees from the Israelis due to the expansion of their “security fence” into Palestinian territory. [19]

Prior to both Bush’s actions, Ronald Reagan punished the Israeli government several times. He withheld a few US vetoes at the UN Security Council, allowing resolutions against Israel to be passed condemning it, placing their nuclear facilities under international supervision, and demanding that they pay reparations for the damage they had wrought. He also placed an embargo against US sales of F-16 fighter jets to Israel because they had used them for something other than self-defense. Later, the embargo was lifted, but the message that the Israelis had stepped beyond the boundaries allowed to the client state had been delivered and gruffly received. Reagan also sold a large amount of military hardware to Saudi Arabia to which the Israelis strongly objected at the time. [20]

Policy Must Benefit Corporate Over Israeli Interests

There are times that US policy goes against Israeli interests, times which are not related to a US need to chastise the client state, but instead are based on US corporate interests. During the Reagan administration from 1985 – 1987, Dov Zakheim served as Deputy Under Secretary of Defense for Planning and Resources in the Office of the Under Secretary of Defense (Policy). For those believing the “Israel Controls the US myth,” it is important to reveal that Zakheim is an Orthodox Jew and an ordained rabbi. In early 1980, the Israeli government approved plans for an Israeli designed and manufactured fighter jet called the IAI Lavi (IAI being the corporation behind the fighter jet, Israel Aerospace Industries). IAI had decided to use engines made by the US corporation, Pratt and Whitney, because they had a working relationship with Bet Shemesh engine plant in Israel. Pratt and Whitney had agreed to co-produce the engines enabling much of the production to be done domestically in Israel. The first prototype of the plane was successfully tested in December 1986. Three months later, an improved second prototype was also successfully tested. However, soon after these test flights, Dov Zakheim began pushing for Israel to cancel plans for the Lavi and arguing that they should not produce an aircraft that would compete with the US F-16 fighter jet. He also claimed that buying jets from the US would be more efficient and less costly for the Israeli government. He was so convincing that many of the top command in the Israeli Defense Forces agreed, leading to a vote in the Israeli cabinet to decide whether or not to cancel the project. It was cancelled in favor of buying F-16s. Part of the problem with the Lavi project was a lack of financing. Unlike US military aid, the Israeli government was footing the bill for the cost of the jets instead of getting a free ride at US taxpayers’ expense. But worse, from the US corporate point of view, was the fact that General Dynamics (later bought by Lockheed in 1993 which merged with Martin in 1995, thus the current Lockheed Martin Corporation) would be excluded from profiting off of its F-16 were the Israelis to manufacture their own fighter planes in large quantities. The Israeli Air Force was due for an upgrade in 1987, and US corporations wanted to service their needs. Pratt and Whitney certainly wasn’t upset by the cancellation of the Lavi even though they were set to profit by co-producing the engines with Bet Shemesh. Pratt and Whitney made and still makes the engines for the F-16. Not having to co-produce them with another business meant all the profit remained in their hands. Shortly after the Lavi project was cancelled, the Israeli government ordered ninety F-16Cs. Today, the only country with more F-16s than Israel is the US.

Dov Zakheim was reviled by the Israeli press and government and much of the public in Israel. Israeli media had been touting the IAI Lavi as an icon of national pride. Yitzhak Shamir, much of the Knesset, and the IDF command who supported the Lavi felt humiliated when the Israeli cabinet voted (12-11) to discontinue the project. The vote to cancel the Lavi is evidence that US corporate interests control the Israelis: they can get enough support in the Israeli government to cancel an icon of national pride. But instead of placing the blame on the real corporate culprits, the Israelis used Dov Zakheim as their scapegoat and allowed the real source of US corporate power to remain concealed. By blaming one man instead of the US corporate government, the Israelis could cling to the illusion that they controlled the US government. They had simply been betrayed by own of their own; they were victims of Dov Zakheim.

Zakheim is a glaring example of the revolving door between government and industry. He began his career in the Defense Department in 1981 serving in various positions before being tapped as Reagan’s Deputy Under Secretary of Defense. He left government in late 1987 (unknown if it was related to his being declared an enemy by the Israelis) and promptly became CEO of SPC International, a subsidiary of Systems Planning Corporation, a high-tech analytical business. While being their CEO, he also served as a consultant to the Secretary of Defense’s office, sat on many Department of Defense panels, was a member of the Council on Foreign Relations, the International Institute for Strategic Studies, and the US Naval Institute. He was also an adjunct scholar for the Heritage Foundation. Zakheim has also been a consultant for McDonnell Douglas Corporation, on the advisory board of Northrop Grumman, and a former vice-president at Booz Allen Hamilton, all major US military contractors. One might think the US government is controlled by group of corporations serving the MIC rather than the Israelis when examining the evidence. [21]

The public US presidential spankings of Israel make headlines for a day or two, then quietly fade from view and the collective memory of media and the general public. To remember such incidents would create cracks in the Israeli Illusion that the plutocrats will not allow. Instances such as the cancellation of the Lavi fighter jet are rare. Although the story was reported in US media, it was not a headline and did not linger in the news. That, too, was instrumental in keeping corporate power concealed from the public. The subject briefly appeared in US media on the 25th anniversary of the cancellation, but gained no notice by the public.

The Distraction of Scripted Stage Shows

The incidents the public is encouraged to remember are the endless stage shows titillatingly presented to us by the media outlets of the wealthy US ruling class. Uniform plots and performances are easy to achieve because six corporations control 90% of US media. [22, 23] The same illusions are repeated in all sources. The assumption of the public is that if all sources are reporting the same stories or more appropriately, broadcasting the same show, then what is being viewed is real. The performances of the various politician-actors are highly convincing and realistic because so many of them believe the roles they play. Netanyahu believes he, acting as Prime Minister of Israel, controls the US government because this is the message presented by US corporate media as well as alternative and international media.

The US-Iran nuclear agreement has provided the basic plot for the current TV-like dramas unfolding weekly before our eyes. One of the strangest performances was recently given by John Kerry, US Secretary of State. If one watched his two opposing performances, on one day, 2 March 2015, he appeared to be afflicted by either a split personality or bipolar disorder. He was the quintessential American Good Cop/Bad Cop – a police interrogation/intimidation tactic normally carried out by two policemen, one playing the role of the “good cop” who feigns empathy with the suspect being questioned and presents himself as a friend, and the other playing the role of the “bad cop” who threatens and sometimes physically attacks the suspect. John Kerry played both roles in the drama presented to us in March. He first held a news conference in which he uttered thinly-veiled threats against Netanyahu if he dared to leak details concerning the specifics of the US/Iran nuclear negotiations. Later the same day, he appeared before the UN where he ardently defended Israel against what he called biased attacks against them in UN reports critical of Netanyahu’s military excursions against Palestine. [24, 25]

These shows made for excellent drama, but the good cop/bad cop performance was ignored by media. There were no political analyses of the verbal attacks against Israel versus the praise heaped upon them by John Kerry.

President Obama has also been center stage for many recent performances. Numerous articles in US and Israeli press have lamented the “tension” between Obama and Netanyahu, many speculating that Netanyahu’s blatant interference in US politics could be cause for many US congressmen to be labeled as treasonous, supporting the needs of a foreign government over the needs and safety of the USA. Some sources warned that this tension would result in the Democratic Party abandoning the Israeli cause. All of this political posturing is obvious fakery if one understands the real US/Israel relationship. There is no possibility of a weakening of support for Israel in the US Congress because such real tension would negatively affect the profit margins of too many US corporations doing business with the MIC. It’s also important to note the real reason behind AIPAC’s media show against a US/Iranian nuclear agreement. The highly hyped script was centered on Israel’s safety, what a danger an agreement would present to the people of Israel. AIPAC’s real concern was about losing their biggest lobbying and fundraising tool – fear of “the bomb” from Iran. [26]

The Israelis Made Us Do It

Israel, the client state, is not solely a financial pot of gold for the wealthy and their corporations. Israel is cover for the US government. Israel is a Euro-American colonial project existing only because it is a front for US imperialism. It is an effective imperial tool using the Israeli government as a proxy agent for US imperialism. This strategic ploy gives political cover for US imperial expansion, allowing the US to deny responsibility for Israeli war crimes. “The Israelis made us do it” is an illusion bought by all media and spread throughout the world and accepted as fact. However, when one dares to follow the money — the vast sums of at play in this illusion, that “fact” becomes an intentionally manufactured fiction by the wealthy plutocrats who really control the US government and desire to keep Israel’s client state status hidden. The whole facade allows the rich and their influence to hide behind the Israeli Illusion.

The US benefits from the illusion by presenting Israel as an independent state. The US avoids taking responsibility for Israeli war crimes and illegal territorial expansion, and the US benefits by the cover provided by Israel as US corporations rush in to expand operations inside illegally occupied territories.

Israel and Syria: Policy & Power Playgrounds

In examining a portion of Israeli/Syrian history, one can see how Israel is used by the US to accomplish small feats that could not be done openly under the banner of the US government. The high plateau region of the Golan Heights offered much better protection for our client state than the UN designated border with Syria. The Six Day War launched by Israel in 1967 saw the Israelis capturing the Golan Heights from Syria. Israel annexed the Golan Heights in 1981. To date, this territory is not internationally recognized as being part of Israel although it is occupied by them, and Israeli law is administered there. Tens of thousands of Syrian Druze have been displaced by Israeli “settlers.” [27]

In 1982, Hafez al-Assad, president of Syria from 1971 – 2000 and father of the current president Bashar al-Assad, “assisted” the IDF (Israeli Defense Forces) and the Phalange (a predominantly Lebanese Christian right-wing party in the Sabra neighborhood and the adjacent Palestinian Shatila refugee camp in Beirut, Lebanon) by blocking the Syrian border so that the refugees under attack could not escape. Estimates vary between 750 – 3500 Palestinian refugees and Lebanese Shiites were massacred during this attack. Prior to this tragedy, Hafez al-Assad had also “assisted” in Palestinian deaths during Jordan’s “Black September.” [28]

More recently, in September 2007, Israel bombed and destroyed a suspected Syrian nuclear facility, suffering no consequences. Bashar al-Assad even helped the Israelis cover up the attack, claiming it never happened. Most Syrians believed al-Assad’s denials broadcast by state media. [29]

Seizure of foreign territory by force and its eventual annexation, the massacre of thousands of Palestinian refugees and Shiites, destruction of a foreign nuclear facility – these are all things that could never have been accomplished under the banner of the US government, but easily carried out by the client state.

The Golan Heights Oil and Water Bonanza

Currently, the Golan Heights is set to bring big rewards to both Israeli and US corporate energy interests. In April 2013, Afek Oil obtained a drilling license in the Golan Heights. To date, they have three drilling sites (Ness-3, Ness-5, Ness-6). The three-year drilling program allows Afek Oil to explore and drill for oil at up to ten sites in the Golan. Due to delays by protests from environmental groups, the actual drilling did not begin until February 2015. The presence of a huge supply of oil was just confirmed October 7, 2015. [30]

Afek Oil and Gas (as well as a second Israeli energy company IEI, Israeli Energy Initiatives) both have as their parent company Genie Israel. Per The Times of Israel, “Genie Energy, which is chaired by Howard Jonas, has some heavyweight investors. Former US vice president Dick Cheney, Michael Steinhardt, Jacob Rothschild, and Rupert Murdoch are all reportedly connected to the company. It also has connections within the Israeli political establishment: The chairman of Genie Israel is Effie Eitam, a former member of the Knesset who also served as the minister of national infrastructures in 2002-2003.” [31]

Not only does the discovery of billions of barrels of oil in the Golan Heights probably guarantee the Israelis a source for their oil needs (they consume 270,000 barrels a day per the above referenced Globes article), but also the Golan Heights is a major natural resource for fresh water that feeds the Jordan River, providing a third of Israel’s water needs. Fresh water sources are scarce in this arid region. It would be difficult for the Israelis to survive without control of this freshwater source in this occupied territory. Water is the new oil, a rapidly diminishing resource as it becomes a source of privatized, corporate profit. The near future will bring further human conflicts over water. [32, 33, 34]

The Boycott, Divestment, Sanctions Movement

Until such time that the US-Israeli relationship no longer benefits the wealthy elite of the US, it will remain unchanged. The BDS Movement began in Palestine in 2005. The movement seeks to encourage boycotts of corporations that benefit from the illegal occupation of Palestine, divestment from investments in such companies, and sanctions against the state of Israel. The BDS movement has succeeded at various colleges, resulting in some of these institutions removing prominent companies from their investment portfolios. Soda Stream closed its factory in the West Bank, and Veolia, a multinational infrastructure company, has pulled out of Israel completely. [35, 36]

Foreign investments in Israel dropped 15% in 2014 as compared to 2013. The BDS Movement and Israel’s latest assault on Gaza, Operation Protective Edge, are credited as the main reasons for this drop. [37] Decreasing investment in Israel plus boycotts of many corporations seen as aiding the illegal occupation hold out the possibility that ties with Israel will hurt corporate profits of many US and international businesses. Hewlett-Packard, Volvo, Caterpillar, Hyundai, Ahava Cosmetics, and Eden Springs bottled water are only a few corporations being targeted by BDS supporters. Academic and cultural boycotts have also been called for, resulting in several popular bands and musicians cancelling shows in Israel. [38] As Israel steadily becomes an international pariah, association with our client state will become a negative instead of a positive for the wealthy elite who profit from Israel today.

Conclusion

The material presented in this paper is offered as partial evidence for the following claims:

Money is power. Religion, human rights, law, ethics, state sovereignty, and the will of the people are all subordinate to the power of the gun. The rich own and control most of the guns. The state, and the corporations the state protects, exist only by violence and the constant threat of violence.

Money rents parliamentary government offices for politicians who represent the interests of the people providing the rent money. This process is called a democratic election, but the electoral system is normalized, legalized bribery.

Money rents government policies through legalized lobbying and election campaign funding, otherwise known as unethical influence peddling by elected officials.

Money buys ownership of the mass media, and thus the rich implement social controls, controlling public opinion by controlling the messages emanating from the mass media. The mass media function under a business model, dependent upon advertising for existence. Media do not publish facts or opinions which offend the people and corporations paying the media bills. [39] The state is a neutral agent bent toward obedience to the narrow interests of the rich because of the money-political power of the rich. Parliamentary governments are open to power struggles among factions of the ruling class as they engage in pitched battles over state policy. The people have minimal power to influence state policy.

All this is well known, but too often, the corporate media intentionally get lost in petty personality conflicts and celebrity cults, with emphasis on speculating upon what elected officials might be thinking. What elected officials are thinking doesn’t matter although media create the illusion that it does matter so that we don’t ask about what is important. What the managers of Lockheed-Martin and Hewlett-Packard are thinking does matter, but rarely reported. The individual politician has only tangential power to influence government policies. The wealthy individual has only tangential influence on how the money-chasing social system works. All substantive state and corporate policies and actions serve the interests of the money system, as wealthy individuals choose to opportunistically participate in the money system, or choose not to do so. Neither the political class, the ruling-class rich, nor does the educated class of professional servants of power, act as individuals. The socio-economic system shapes the men and women to meet the constraints of the institutions and their power hierarchies based upon the illusion of money. — The rules of the game reward the winners of the money-chasing game. Others are either passive losers, or actively choose to not participate, relegated to the margins of formal society. Increased power and profits are the tokens of cultural success distributed by the rules of the socio-economic game.

The money-power system operates globally. For example, what happens to Syria will not likely be decided by Syrians, but more likely decided by the complex power struggle for profits and control of natural resources by a few capitalists.

Then it follows that the state of Israel has little or no power because they have little or no independent money. We show the money-power relationships between the USA and Israel in the following chart. All the personal drama we witness in the mass media are empty theatrics.

The USA military-industrial complex profit machine, international version by Dominique Ford

To grasp the value of the drama is to observe that the arm-waving, flailing about on camera, and the boasting is mere scripted bluff and bluster. The actual actions of the Israeli government serve the US imperial neocolonial control. The Israeli government, as is often claimed, does not harm US interests. US interests are the expansion of state power for the purpose of expanding the profits of US transnational corporations, as we have documented here.

With respect to the claim that AIPAC tells the US government what to do, the evidence presented above indicates that AIPAC serves the interests of the state of Israel, and that furthermore, the state of Israel serves the colonial interests of the USA Empire. As the Israeli state kills Palestinians and steals their land, all of this violence is consistent with USA government interests, often mislabeled, US national interests. USA government interests are dictated by USA corporate interests; not representing the interests of the people. AIPAC is a cheerleader for Team USA as the USA explicitly intends to act as an agent of US-based transnational oil companies in their quest to control Middle East oil. The state of Israel functions as a heavily-armed colonial outpost of the US corporate empire. AIPAC is put there to function as a magnet deflecting attention away from the centers of real power which set US foreign policy: transnational corporations.

The US government tolerates much verbal abuse from the agents of the Israeli government because the drama provides a convenient public cover presented in the mass media, presenting the Israeli government as if it were controlling the US Congress and President. Allowing the Israeli government to act, in the mass media, as if it were controlling US foreign policy creates a clever cover for the brutality of US corporate theft of natural resources and labor from within neocolonial states which possess some local autonomy. Murder and theft are the tools of imperial expansion. When all eyes are on the Prime Minister of Israel, a convenient distraction is employed to divert attention away from the flow of huge fortunes traversing the circuitous path from American taxpayer’s pocket, through the US government treasury, through US military-industrial contracting corporations, to the pockets of the rich investors. USA foreign policy and foreign aid are labels for taxpayer subsidies for the rich, combined with imperial expansions of US economic domination of, and theft from, distant peoples. The so-called “US national interest” is state domination of the planet for the purpose of US corporate domination of labor and natural resources, for the purpose of winning the game of accumulation of wealth: astounding profits for the few; unspeakable human suffering for the many.

Behind the dramatic scripted TV acting of elected officials are deadly armaments, including nuclear weapons, but the US government doesn’t care. If we hold on to any single truth about contemporary international affairs is that the talking heads on TV have little connection to the realities of either the potential for global nuclear war, or global ecosystem collapse. Corporations are driven by quarterly profits. States are driven by the melding of the command from the corporations to increase quarterly profits, and the interest of the state itself in imperial powers, which are means to increase quarterly profits. What happens to the working class or the planet is given much rhetorical attention, but no substance. All states are failed states. The global chase for dollars is a social fiction we could discard by consensus, but the global chase for oil is an existential crisis resulting in the tragedy of the deaths of individuals fighting over pipelines, and the planet dying from the deadly atmospheric poisoning, the product of the capitalist economic engines of industrial production for profit, not need.

Politicians, and the mass media direct our attention towards the personalities of heads-of-states and the diplomatic corps. Yet, a cursory examination of history indicates that people come and go– presidents, prime ministers, priests, and potentates are here today, gone tomorrow– while the power system remains stable for centuries. USA foreign policy today is no different than it was 200 years ago, with the notation that the names and localities of imperial aggression have changed. These verifiable conditions lead us to examine the dynamics of hierarchical power and the money system. Replacing the sociopaths occupying the slots at the top of the corporate-state system will achieve nothing. Hoping for more humane heads-of-state and corporate management will get us nowhere. We humans are functional units of cultural systems; few of us challenging the system of dollar-rewards. If we are to have any chance of surviving this century, it will be because we address the reward system inherent in the money-chasing game which utilizes a mystifying fiction called money. The mystification of US and Israeli relations is a product of the tangle of mutually-convenient myths of corporate, state, client state, and colonial power.

Power is displayed variably. The center of power in a monarchy is prominently on public display as manifested in the highly-visible king [40]. The center of power in a parliamentary democracy is hidden, made invisible by the dutiful servants of power. School teachers, journalists, academics, writers, pundits, entertainers, and religious authorities are unified in their functional commonality. They tacitly agree to a unified silence. David Graeber offers an accurate condensation: “Indeed, the most powerful way to represent power has always been to refuse to represent it. […] the way to show that something is truly powerful is to hide it, to render it invisible, ineffable, unknowable, utterly featureless and abstract.”

We thank Dominique Ford for skillful graphic assistance with the single figure accompanying this article.

References Cited

[1] http://www.israellobby.org/default.asp

[2] http://www.haaretz.com/news/diplomacy-defense/1.605445

[3] http://www.breakingisraelnews.com/21874/us-senate-upgrades-israels-status-major-strategic-partner/

[4] http://www.politico.com/magazine/story/2014/08/best-friends-dont-have-to-ask-110036

[5] http://www.timesofisrael.com/pentagon-approves-massive-1-9-billion-arms-sale-to-israel/

[6] http://www.bloomberg.com/bw/articles/2014-07-16/why-more-of-israels-iron-dome-will-be-made-in-the-u-dot-s-dot-a

[7] http://fas.org/sgp/crs/mideast/RL33222.pdf

[8] http://www.opensecrets.org/news/2015/03/aipac-posts-biggest-lobbying-year-in-2014-as-netanyahu-goes-to-congress/

[9] http://www.followthemoney.org/industry-influence

[10] http://www.opensecrets.org/orgs/summary.php?id=d000000104

[11] http://www.opensecrets.org/orgs/summary.php?cycle=2014&id=D000000125

[12] http://www.opensecrets.org/orgs/summary.php?cycle=2014&type=P&id=D000000334

[13] http://www.opensecrets.org/pacs/lookup2.php?strID=C00088591&cycle=2014

[14] http://www.whoprofits.org/company/hewlett-packard-hp

[15] http://www.modernhealthcare.com/article/20150729/NEWS/150729824

[16] http://www.fnherstal.com/index.php?id=652

[17] http://www.cnbc.com/2015/02/19/finally-the-us-is-busting-israeli-banks-commentary.html

[18] http://www.marketwatch.com/story/sam-antar-the-cfo-behind-the-crazy-eddies-fraud-2014-07-29

[19] http://thinkprogress.org/security/2010/01/11/76731/mitchell-israel-loan-guarentee/

[20] http://www.haaretz.com/blogs/west-of-eden/if-obama-treated-israel-like-reagan-did-he-d-be-impeached-1.400542

[21] http://rightweb.irc-online.org/profile/Zakheim_Dov

[22] http://www.businessinsider.com/these-6-corporations-control-90-of-the-media-in-america-2012-6

[23] http://www.nytimes.com/2014/07/26/business/a-21st-century-fox-time-warner-merger-would-narrow-already-dwindling-competition.html?_r=1

[24] http://www.cbsnews.com/news/kerry-warns-against-details-iran-nuclear-deal-netanyahu-speech-congress/

[25] http://www.haaretz.com/news/diplomacy-defense/1.644960

[26] http://lobelog.com/former-aipac-official-on-irans-importance-to-aipac/

[27] http://www.nytimes.com/learning/general/onthisday/big/1214.html#article

[28] https://www.wsws.org/en/articles/2000/06/assa-j16.html

[29] http://www.newyorker.com/magazine/2012/09/17/the-silent-strike

[30] http://www.globes.co.il/en/article-huge-oil-discovery-on-golan-heights-1001071698

[31] http://www.timesofisrael.com/israels-oil-wars-shift-to-the-golan-heights/

[32] http://www.bbc.com/news/world-middle-east-14724842

[33] http://earthobservatory.nasa.gov/blogs/earthmatters/2014/11/05/earths-disapearing-groundwater/

[34] http://www.theguardian.com/money/2014/jul/27/water-nestle-drink-charge-privatize-companies-stocks

[35] http://www.mintpressnews.com/10-years-later-israel-under-pressure-from-successful-boycott-movement/207332/

[36] http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=14605

[37] http://europe.newsweek.com/foreign-investment-israel-slashed-by-half-329269

[38] http://www.bdsmovement.net/activecamps/consumer-boycott

[39] Herman, Edward S., and Noam Chomsky. 1988. “Manufacturing consent: the political economy of the mass media.” New York: Pantheon Books.

[40] David Graeber, and Foucault quoted therein. David Graeber. 2015. “Dickheads: The paradox of the necktie resolved.” The Baffler number 27.

This article was originally published by Real News –

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phogenson · 7 years

Text

Leni

Reflection

Believe it or not I think I watched Triumph of the Will (1935) for the first time when I was like 13 or so, and it's significant place in cinematic history was pretty immediately apparent to me. As I recall the other thing that kind of stuck out to me had to do with the rhetorical style of most of the figures documented here. Both of those observations kind of underly a lot of what my career in philosophy has been ever since--how is something being said and what is the significance of the utterance--these are philosophical questions at the heart of my work.

So Mrs. Young said we could write about anything for our last quarter paper in AP European History. My papers previous to that had really all been research essays that were very pre-19th century in their focus. This was something that I had a growing interest in and which I felt that I could just sort of belt out.

The paper is typical of a slightly unrefined style of my high school papers. It meanders though examples and struggles to come together around a thesis. If I had to retroactively put a thesis to this, it might be the early formulation of a proposition that would underscore some of my later work in this area and an early stab at my general formalism about art. (But I didn't know anything about those things at the time.) The thesis to look for might be something like this: the formal properties of a work do nothing to distinguish the ethical standards we want to hold artworks to because, as I will show, formal properties of morally dubious works significantly overlap with the formal properties of ethically praiseworthy works and in fact are deployed in with the same intention from work to work.

So basically I was just shining a light into the morass of the way films are made. The answer I guess I was seeking was "it's complicated, I'll get back to you on it." But let's get into the weeds here and see the kind of crazy work I was doing in high school.

Quarter Paper

Leni Riefenstahl is a singularly controversial filmmaker. While discussing her propaganda films has been common since the fifties, homaging and using her work similarly time honored: watching Triumph of the Will in its original context seems similar to reading Mein Kampf in any context. While propaganda is hardly new, Riefenstahl’s work not necessarily defensible or even unorthodox, it is important to film history in general to understand that the techniques used in Triumph of the Will are significant in their ubiquity and effectiveness, not to mention their pervasiveness in contemporary films, dealing or not dealing with the Third Reich itself, partly artistic rather than purely tendentious. Propaganda requires a direct emotional assault on the viewer, effective propaganda would use a variety of tactics to achieve such an assault but propaganda on the level of subtlety of Riefenstahl’s becomes effective in many contexts beyond persuasion. Thus, regardless of the confines art tries to break from, artistic film also directs the audience’s gaze or emotion with a level of tact and exigence that is similar to the best propaganda. It is important, then, to realize that the images and juxtapositions most effectively used by Riefenstahl in the late 1930s are not tactics purely to engender support for an obviously extreme regime but are devices that are necessary to deal with themes ranging from power to friendship, hopelessness to strength, and the implications of living in the Nazis power.

The content and conditions of her films do little to help Riefenstahl’s controversial status, what is focused on is how Riefenstahl often moved aside questions and allegations about the nature of her films in favor of shameless self promotion.[1] The academic who seems to make this point most clear is Susan Sontag. Sontag’s “Fascinating Fascism” is considered the seminal work on analyzing Leni Riefenstahl’s films in context with the information presented in her later photographic essays. “Fascinating Fascism” presents a compelling case that Riefenstahl’s later works were “full of disquieting lies” and continuities with Nazi sentiments.[2] It seems that after the war, author biographies focused on the fact that she had been acclaimed but not what she had been acclaimed for. This redirection, however, seems logical considering as Sontag does that Riefenstahl was, regardless of for how long, detained by the allies after the war and de-Nazified.[3] Further the megalomania that Sontag describes would be reason enough for Riefenstahl to continue working as an artist. She would hardly be the first so motivated. It seems significant also that, though there were parallels between all her works even though Riefenstahl’s subject matter progressed from Nazis to African tribes to aquatic scenes; progressively further from subjects that might be misconstrued. Riefenstahl herself had a self absorbed drive with highly political connotations in that she used her ego to redirect the flack she should have faced for her films.

While Sontag’s opinion of Riefenstahl the woman seems, ultimately, apt, her characterization of her propagandist work is unconsidered. Sontag comes down on Triumph of the Will hard saying it is “the most successfully, purely propagandistic film ever made, whose very conception negates the possibility of the film maker’s having an aesthetic or visual conception independent of propaganda.”[4] Even if Sontag is correct in her analysis of why Triumph of the Will was made, she does not see a means of assessing it on its own merits. Writing in 1991, however, Linda Schulte-Sasse takes a stance on Riefenstahl that is less extreme and seeks to describe the artistic side of fascist art. Schulte-Sasse wants “to eschew a personalized debate on the exaltation or excoriation of an individual and search for criteria in assessing the films that allow for both historical specificity and problematic continuities.”[5] To critically understand Riefenstahl’s work, it is necessary to distinguish a continuity of Nazi or not (though it would seem that Riefenstahl never really put down the principles behind Nazi art) and significant techniques.[6] Riefenstahl’s work is obviously biased on the first account and, though not necessarily groundbreaking on the second, in cinematic history her films and techniques do have continued influence. Perhaps Sontag is writing at a time before she could see the effects that Triumph of the Will would have on more recent films, but Sontag should also have realized the potential for effective non-propagandist techniques as a critic.

Propaganda has two general forms; commanding and exemplifying. Film, with its principally narrative and dynamic ability to juxtapose images and recreate situations, is uniquely capable of making example-based propaganda. The Battleship Potempkin is a case in point as a reenactment that would demonstrate to the intended average Russian viewer what might be done in the situation of the sailors; rebel against the czarists.[7] Alternatively, the poster (right) comes to the viewer from an assumed position of authority with recommended action. While technically Riefenstahl’s Triumph of the Will seems to fit the example-based category its technique is totally different; while Eisenstein and others used reenactment or staged situations Riefenstahl used the documentary genera and nearly unlimited resources to create a film that was both immediate and affecting.[8] Here is where Schulte-Sasse’s argument becomes all the more important. Her definition that fascist works represent a combination of something done for aesthetic effect and real experiences is central, they “break down the boundary between the aesthetic and life and thereby lead the spectator into an aestheticized activism” thus becoming propaganda.[9]

Schulte-Sasse, unlike Sontag, believes that it is right to recognize the strengths of Riefenstahl’s films; she no doubt sees their significance in retrospect. Nevertheless Triumph of the Will plainly fits into the camp of fascist films because it “clearly does transgress the boundaries of the imaginary, merging the political and the aesthetic, and permitting the individuals attending the rally and those reliving it through the technological apparatus the experience of a collective decentering… it goes beyond this by trying to introduce the imaginary into the public sphere, by conflating the imaginary with modern reality.”[10] Riefenstahl is less making an argument and more relating conflicting images. Analytically, as a result of Schulte-Sasse’s assertion, one must recognize the importance of the techniques Riefenstahl used in her films to achieve a balanced juxtaposition of themes for propaganda rather than dismiss them because of films made so far as Sontag does.[11]

Riefenstahl’s two part documentary Olympia most effectively depicts her raw ability as a director. Olympia captures the movements of its subjects in a way that can only be described as lucid. The number and variety of angles of single actions is staggering, it is little wonder that it took nearly two years to edit Olympia because of the difficulty there would have been at the time in spooling through reels and reels of not always synchronized footage. At the 1936 Olympics, Riefenstahl would have emphasized the camera movements and positions extensively just to capture shots like the one above which makes effective use of the longest line on the frame.[12] This shot alone demonstrates Riefenstahl’s skill as a director but it is not what she is known for or really representative of her work or the influence her work has had on a variety of movies since. This scene in Olympia while transient of reality in some respects does not accurately reflect what it is that Schulte-Sasse means when she posits “the transgression of the separate realm of the aesthetic, or, more precisely, the introduction of the aesthetic into reality, requires an actual mediation of the instrumental and decentering experiences in a new mode of the political.”[13]

Alternatively Triumph of the Will, the most totally propagandistic of Riefenstahl’s films makes full use of the cinematic medium not to make an argument really for or against the Third Reich, but rather to guarantee the audience’s investment and engagement in visuals and motifs which would otherwise seem irrational. When watching so much footage of Hitler orating, a viewer might be overcome by the dramatic excess in his delivery. Thus, context becomes an important tool; the excess which Schulte-Sasse would consider aesthetic--i.e. that done for effect--is mitigated by the “real” context the excess is placed in. In terms of actual technique, Riefenstahl’s answer to the problem is simple; juxtaposition of the aesthetic with a personal reaction. The shot of Hitler above is far from humanizing.[14] Rather it is the classic depiction of the strong leader over his people; reserved, not human. Hitler’s central location perpendicular to the camera makes the viewer feel like this is a glance; good but not great seating at a concert. Yet this cannot be the dominating view of the system Hitler represents in a film glorifying the extreme. Thus another shot is needed to bridge the gap between the aesthetic of the genre and the tacit critical eye of the viewer. The subsequent shot of a soldier espousing similar rhetoric provides the necessary visuals to re-involve the audience in what is supposed to be an emotional experience; it is as though a metaphor of seating is extended, the soldier being another audience member behind the viewer and invested in the event regardless of rationality.

Riefenstahl uses spectators often to capture the belief others appear to have; peer pressuring the viewer by suggesting emotion rather than demanding or reenacting a belief. While the most memorable scenes from Triumph of the Will may be the ones that make use of the cast of thousands, the more interesting ones are those of individuals. Crowds, even when unified can be overwhelming, but one person placed to the side and somewhat obscured in shadow captures the viewers own face-in-the-crowd and creates instant empathy.[15] The technique--closeups of reactions in succession juxtaposed with some apparently greater force--is effective at producing a variety of reactions especially when it is difficult for a viewer to grasp the enormity of the situation.

The Nazis have the sense of totality and dominance that is difficult to craft an objective response to. This difficulty is perhaps why Triumph of the Will is not a popular movie to discuss even though its theoretical approach to the difficulty of presenting Nazis is perfect. It seems a tasteless comparison to make, but the similarities between the construction of these shots from Triumph of the Will and those of Schindler’s List would emphasize the indelible mark Riefenstahl’s work has had on an effective presentation of the Nazis if nothing else. The following four shots from Steven Spielberg’s magnum opus similarly depict a response to an event the audience may not be able to empathize with (the arrival and conflagration of Nazis) with an image the audience can immediately judge (the boy’s face or the family at dinner).[16] These particular shots make the events of the movie more moving because they demand the involvement of the audience and heighten certain features and feelings by connecting the common with the extreme.

It is little surprise considering the line between the extreme and the personal that one film that draws most heavily on the style of Triumph of the Will is Star Wars. A movie like Star Wars has to walk the line between the grandiose themes of galactic strife and memorable characters that the audience likes.[17] Thus, at the end of his movie George Lucas copies almost directly from Triumph of the Will to play up the accomplishments of his characters. Not only are the images similar, as the scene from Star Wars progresses the similarities grow and Lucas uses the juxtaposition of the mass of people with the individual responses in the situation to present his characters as consistently a possible; after being overwhelmed by the scale of the initial shots, Lucas reminds the viewer of the endearing traits of the characters by returning, as Riefenstahl would, to the their closeups and idiosyncratic gestures--Han Solo winks, Luke Skywalker smiles at R2-D2--making them comparatively normal heroes despite the galaxy far, far away they come from.

Leni Riefenstahl holds a very peculiar place in cinema because of technical capabilities as compared with her prevailing politics. In her life Leni Riefenstahl generated a gregarious personality to redirect questions meant to target her background as a prominent propagandist for a superlatively destructive regime.[18] But the theoretical strengths of Riefenstahl’s work are not without their tact and artistry, though they are ultimately peculiar to a genre of filmmaking. Triumph of the Will in particular grapples with the difficulties of presenting a regime in many ways so ridiculous that the film required constant returns to personal reactions to create a synthesis of sentiments which could connect the viewer to the action. These techniques which Riefenstahl used to their highest effect in her propaganda films ultimately have left their mark on film history as effective methods of creating emotional involvement in extreme situations. Her methods have a level of ubiquity in that they appear in a variety of contexts as directors present the horrors of the holocaust or the heroics of space aliens. Riefenstahl is not a director who comes out absolved having done art for art’s sake, rather she is a director to be highly regarded in that she made such effective use of techniques which innate to the persuasive aspects of all film media.

Footnotes

Steven Bach, "The Puzzle of Leni Riefenstahl," The Wilson Quarterly 26.4 (2002).

Susan Sontag, "Fascinating Fascism," Movies and Methods, ed. Bill Nichols, vol. 1 (Berkeley: University of California Press, 1975) 32.

Sontag, "Fascinating Fascism," 36.

Sontag, "Fascinating Fascism," 34.

Linda Schulte-Sasse, "Leni Riefenstahl's Feature Films and the Question of a Fascist Aesthetic," Cultural Critique.18 (1991): 126.

Sontag does absolutely understand the principles of fascist aesthetics. She eloquently describes them thus: “More generally, they flow from (and justify) a preoccupation with situations of control, submissive behavior, extravagant effort, and the endurance of pain; they endorse two seemingly opposite states, egomania and servitude. The relations of domination and enslavement take the form of a characteristic pageantry: the massing of groups of people; the turning of people into things; the multiplication or replication of things; and the grouping of people/things around an all-powerful, hypnotic leader-figure or force. The fascist dramaturgy centers on the orgiastic transactions between mighty forces and their puppets, uniformly garbed and shown in ever swelling numbers. Its choreography alternates between ceaseless motion and a congealed, static, ‘virile’ posing. Fascist art glorifies surrender, it exalts mindlessness, it glamorizes death.” Sontag, "Fascinating Fascism," 40.

The Battleship Potempkin, dir. Sergie Eisenstein, Goskino, 1925.

Sontag, "Fascinating Fascism," 34.

Schulte-Sasse, "Leni Riefenstahl's Feature Films and the Question of a Fascist Aesthetic," 124.

Schulte-Sasse, "Leni Riefenstahl's Feature Films and the Question of a Fascist Aesthetic," 142.

In retrospect, Sontag’s greatest misconception about Riefenstahl’s films is that “they are not really important in the history of cinema as an art form.” Though Sontag was writing in 1975, before the most prominent examples of Riefenstahl homage--Star Wars (1977) and The Lion King (1994) come to mind--as a theoretician she should have been able to recognize as Schulte-Sasse did the singular nature of Riefenstahl’s films. Sontag, "Fascinating Fascism," 42.

Olympia, dir. Leni Riefenstahl, Tobis, 1938.

Schulte-Sasse, "Leni Riefenstahl's Feature Films and the Question of a Fascist Aesthetic," 142.

Triumph of the Will, dir. Leni Riefenstahl, Universum Film AG, 1935.

The frame on this page is a most subdued version of the closeup response. While Leni Riefenstahl is far from the first director to use an extreme closeup to convey emotion, she may use this kind of shot more effectively than many other directors. Shots that may only last for an instant in Triumph of the Will are considered for their effect on a spectrum from the bombastic to this subtle response. In this shot the girl is the subject, her smile something that the viewer is supposed to reciprocate but her proximity to the swastika is likewise vital; the girl is anonymous but she can still be this close to the symbol of the party. Triumph of the Will, dir. Riefenstahl.

Schindler's List, dir. Steven Spielberg, Universal Pictures, 1993.

Star Wars, dir. George Lucas, 20th Century Fox, 1977.

Bach, "The Puzzle of Leni Riefenstahl."

Annotated Bibliography

Bach, Steven. "The Puzzle of Leni Riefenstahl." The Wilson Quarterly 26.4 (2002): 43-46.

This brief study of Riefenstahl late in her life is much more a work consulted than cited. It provided examples of Riefenstahl’s unique aversions to questions about her early work. Ultimately a colorful study.

The Battleship Potempkin. Dir. Eisenstein, Sergie. Jacob Bliokh. 1925.

A noted propagandist film from one of cinema’s foremost theoreticians. The Battleship Potempkin provides a vital contrast in styles between those of the Nazis and the Soviets. Sontag makes similar parallels though with different directors and works.

Star Wars. Dir. Lucas, George. Gary Kurtz. 1977.

Significant in its homage use of World War II battle photography. Early in his career Lucas used a variety of fundamental cinematic tools to create a variety of feelings and memorable characters. This movie draws directly from Triumph of the Will.

Olympia. Dir. Riefenstahl, Leni. Leni Riefenstahl. 1938.

One of Riefenstahl’s most well known films. Originally shot in 1936 at the Berlin Olympics, Olympia is a two part film that recorded the games themselves primarily though the Nazis are obviously a subject too. Olympia has had long lasting effects on sport photography with some archetypal shots still appearing in contemporary movies and sports coverage.

Triumph of the Will. Dir. ---. Leni Riefenstahl. 1935.

This is the fundamental Nazi propaganda piece. The imagery from this film is something in the collective memory of anyone who has seen footage of the Nazis or any totalitarian regime as the angles and techniques are at this point the standard in presentation of such subject matter. Triumph of the Will was once a staple of German theaters during the War; today it is banned in Germany.

Schulte-Sasse, Linda. "Leni Riefenstahl's Feature Films and the Question of a Fascist Aesthetic." Cultural Critique.18 (1991): 123-48.

Schulte-Sasse provides a necessary relief from Sontag’s ultimately dismissive seminal work. Schulte-Sasse allows for reasonable analysis to be made about fascist films by recognizing the leaps they make between some conflicting and always extreme subject matter.

Sontag, Susan. "Fascinating Fascism." Movies and Methods. Ed. Bill Nichols. Vol. 1. 2 vols. Berkeley: University of California Press, 1975.

In many respects the seminal work on Riefenstahl’s films. Sontag really seeks to dispel any belief that Riefenstahl has significance to film today because of the context she worked in. However Sontag was writing prior to the examples which seem most relevant in suggesting otherwise.

Schindler's List. Dir. Spielberg, Steven. Steven Spielberg, Gerald R. Molen and Branko Lustig. 1993.

Critically acclaimed Schindler’s List is something of antithesis to Riefenstahl’s work. Nevertheless, Spielberg’s film is based on a keen knowledge of the holocaust and is effective because he presents such a variety of details and subtleties. Schindler’s List is so effective for similar reason’s to Triumph of the Will.

#Leni Riefenstahl #Triumph of the Will #AP European History #Propaganda

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