Thursday, December 31, 2009

Tremendous Juxtaposition

Wallace Stevens

The Snow Man

One must have a mind of winter
To regard the frost and the boughs
Of the pine-trees crusted with snow;

And have been cold a long time
To behold the junipers shagged with ice,
The spruces rough in the distant glitter

Of the January sun; and not to think
Of any misery in the sound of the wind,
In the sound of a few leaves,

Which is the sound of the land
Full of the same wind
That is blowing in the same bare place

For the listener, who listens in the snow,
And, nothing himself, beholds
Nothing that is not there and the nothing that is.


Obama and Our Post-Modern Race Problem

The president always knew that his greatest appeal was not as a leader but as a cultural symbol.


America still has a race problem, though not the one that conventional wisdom would suggest: the racism of whites toward blacks. Old fashioned white racism has lost its legitimacy in the world and become an almost universal disgrace.

The essence of our new "post-modern" race problem can be seen in the parable of the emperor's new clothes. The emperor was told by his swindling tailors that people who could not see his new clothes were stupid and incompetent. So when his new clothes arrived and he could not see them, he put them on anyway so that no one would think him stupid and incompetent. And when he appeared before his people in these new clothes, they too—not wanting to appear stupid and incompetent—exclaimed the beauty of his wardrobe. It was finally a mere child who said, "The emperor has no clothes."

The lie of seeing clothes where there were none amounted to a sophistication—joining oneself to an obvious falsehood in order to achieve social acceptance. In such a sophistication there is an unspoken agreement not to see what one clearly sees—in this case the emperor's flagrant nakedness.

America's primary race problem today is our new "sophistication" around racial matters. Political correctness is a compendium of sophistications in which we join ourselves to obvious falsehoods ("diversity") and refuse to see obvious realities (the irrelevance of diversity to minority development). I would argue further that Barack Obama's election to the presidency of the United States was essentially an American sophistication, a national exercise in seeing what was not there and a refusal to see what was there—all to escape the stigma not of stupidity but of racism.

Barack Obama, elegant and professorially articulate, was an invitation to sophistication that America simply could not bring itself to turn down. If "hope and change" was an empty political slogan, it was also beautiful clothing that people could passionately describe without ever having seen.

Mr. Obama won the presidency by achieving a symbiotic bond with the American people: He would labor not to show himself, and Americans would labor not to see him. As providence would have it, this was a very effective symbiosis politically. And yet, without self-disclosure on the one hand or cross-examination on the other, Mr. Obama became arguably the least known man ever to step into the American presidency.

Our new race problem—the sophistication of seeing what isn't there rather than what is—has surprised us with a president who hides his lack of economic understanding behind a drama of scale. Hundreds of billions moving into trillions. Dramatic, history-making numbers. But where is the economic logic behind a stimulus package that doesn't fully click in for a number of years? How is every stimulus dollar spent actually going to stimulate? Why bailouts to institutions that only hoard the money? How is vast government spending simultaneously a kind of prudence that will not "add to the deficit?" How can such spending not trigger smothering levels of taxation?

Mr. Obama's economic thinking (or lack thereof) adds up to a kind of rudderless cowboyism combined with wishful thinking. You would think that in the two solid years of daily campaigning leading up to his election this nakedness would have been seen.

On the foreign front he has been given much credit for his new policy on the Afghan war, and especially for the "rational" and "earnest" way he went about arriving at the decision to surge 30,000 new troops into battle. But here also were three months of presidential equivocation for all the world to see, only to end up essentially where he started out.

And here again was the lack of a larger framework of meaning. How is this surge of a piece with America's role in the world? Are we the world's exceptional power and thereby charged with enforcing a certain balance of power, or are we now embracing European self-effacement and nonengagement? Where is the clear center in all this?

I think that Mr. Obama is not just inexperienced; he is also hampered by a distinct inner emptiness—not an emptiness that comes from stupidity or a lack of ability but an emptiness that has been actually nurtured and developed as an adaptation to the political world.

The nature of this emptiness becomes clear in the contrast between him and Ronald Reagan. Reagan reached the White House through a great deal of what is called "individuating"—that is he took principled positions throughout his long career that jeopardized his popularity, and in so doing he came to know who he was as a man and what he truly believed.

He became Ronald Reagan through dissent, not conformity. And when he was finally elected president, it was because America at last wanted the vision that he had evolved over a lifetime of challenging conventional wisdom. By the time Reagan became president, he had fought his way to a remarkable certainty about who he was, what he believed, and where he wanted to lead the nation.

Mr. Obama's ascendancy to the presidency could not have been more different. There seems to have been very little individuation, no real argument with conventional wisdom, and no willingness to jeopardize popularity for principle. To the contrary, he has come forward in American politics by emptying himself of strong convictions, by rejecting principled stands as "ideological," and by promising to deliver us from the "tired" culture-war debates of the past. He aspires to be "post-ideological," "post-racial" and "post-partisan," which is to say that he defines himself by a series of "nots"—thus implying that being nothing is better than being something. He tries to make a politics out of emptiness itself.

But then Mr. Obama always knew that his greatest appeal was not as a leader but as a cultural symbol. He always wore the bargainer's mask—winning the loyalty and gratitude of whites by flattering them with his racial trust: I will presume that you are not a racist if you will not hold my race against me. Oprah Winfrey, Michael Jordan and yes, Tiger Woods have all been superb bargainers, eliciting almost reverential support among whites for all that they were not—not angry or militant, not political, not using their moral authority as blacks to exact a wage from white guilt.

But this mask comes at a high price. When blacks become humanly visible, when their true beliefs are known, their mask shatters and their symbiotic bond with whites is broken. Think of Tiger Woods, now so humanly visible. Or think of Bill Cosby, who in recent years has challenged the politically correct view and let the world know what he truly thinks about the responsibility of blacks in their own uplift.

It doesn't matter that Mr. Woods lost his bargainer's charm through self-destructive behavior and that Mr. Cosby lost his through a courageous determination to individuate—to take public responsibility for his true convictions. The appeal of both men—as objects of white identification—was diminished as their human reality emerged. Many whites still love Mr. Cosby, but they worry now that expressing their affection openly may identify them with his ideas, thus putting them at risk of being seen as racist. Tiger Woods, of course, is now so tragically human as to have, as the Bible put it, "no name in the street."

A greater problem for our nation today is that we have a president whose benign—and therefore desirable—blackness exempted him from the political individuation process that makes for strong, clear-headed leaders. He has not had to gamble his popularity on his principles, and it is impossible to know one's true beliefs without this. In the future he may stumble now and then into a right action, but there is no hard-earned center to the man out of which he might truly lead.

And yes, white America conditioned Barack Obama to emptiness—valued him all along for his "articulate and clean" blackness, so flattering to American innocence. He is a president come to us out of our national insecurities.

Mr. Steele is a senior research fellow at Stanford University's Hoover Institution.

Sunday, December 27, 2009

More on Jazz and Good Writing

Firstly, consider this if you can get though the verbal labyrinths:

Secondly me in commenting on "firstly":

"...Lots of spelling mistakes here--unforgivable.

Amidst all the convoluted, wordy dross, in which self satisfaction in an amusical idiot who, I bet, cannot read music or play an instrument--for an instance or two, consider, in order, amongst much more, this ponderousness and then this convolution:

" a serious art that is pledged, like all serious art, to the beauty of structure and the morality of structure..."


"... The writer, who seems to think that Mel Powell was the equal of Thelonious Monk, cites the "searing" opinion of the freelance philistine Terry Teachout that Marsalis propounds "an ideology in which race is a primary factor in the making of aesthetic judgments," and reports that "the racialist ideology has played out in a series of jazz programs [at Lincoln Center] based on the work of black players, composers, and arrangers...."

resides in such verbal sound and thunder signifying guess what, there are a few good things, in ironic analogue to the few diamonds in the Burnsian rough.

If my foregoing is wordy and convoluted, t'is intentionally so, in parody of the incredibly estimable--as in "taking the measure" of--Wieseltier.

For an intensely sharp contrast, consider the beautifully thoughtful, complex and knowing--can't stress that "knowing" enough, 'knowing" as in "musically knowing" among other things--essay and book review about, and loving appreciation of, Monk:

Note Yaffe's prose: what a pleasure by comparison, clear and accessible, compelling attention in the service of incisive ideas. I can boil the verbal fat off Wieseltier's arguments and get them down to a few plain spoken sentences vexingly inconsonant with his cloudy prolixity..."


Firstly, the really great essay:

Secondly, my note of apprecation

Dear Mr. Yaffe:

I want to compliment you on your excellent essay/book review Misterioso concerning Thelonious Monk. I just read it today.

I particularly liked your upbraiding of those who reduce Monk by objectifying him as child like or even a primitive, rather than according him his complex humanity marked in his later years by illness and suffering coexisting with his brilliance.

I aslo liked your tact and restraint, and your recognition of Robin D.G. Kelley's tact and restraint, in not turning Monk into a political or ideological or racial hobby horse. Rather the substantial focus is on Monk's life and art as it should be.

Also your piece is well written in clear, accessible prose that compels attention.

Thanking you,

Itzik Basman

Thirdly, the gracious note back:

Dear Itzik,

Thanks so much for your kind and thoughtful words.

I write for people like you.

All the best,


Saturday, December 26, 2009

Last Word for now on the Ideal and the Real


You write: "My “Real”— based challenge to you is this: give me an example of any society ever in our history that has manifested, for various betters and bads, justice as anything but, analytically, the trade offs and tensions and adjustments and balancing of competing claims and so on. If you cannot, and that is my presumption, you will need to question both the utility of long voyage and whether it will take you anywhere. ... [I'll come back to the omission in a bit]

To reduce this challenge to one, amongst many, concrete case, has there ever in human history been a society in which the state did not have an expropriating power?"

I'll respond by posing a hypothetical: suppose we were writing about 150 years ago, and you were to ask "Has there ever in human history been a society in which the state's government was elected by secret ballot of every citizen of age" -- would that be a convincing and "real" argument against democracy to you? Some things are new under the sun, and while their newness isn't in itself an argument for them, I think even fairly hidebound conservatives would be reluctant to make it, in itself, an argument against them.

And, while I'll certainly admit that there have always been (and always will be) arguments over what justice is in the abstract, or requires in particular instances -- that's all that I mean in referring to the "long road", after all -- that's not at all to say that justice itself just IS these "trade offs and tensions and adjustments", etc.

I'm repeating myself now too, but I'll say again that without some substantive sense of what justice is or requires, you have no way of knowing how to make, justly, such trade offs, etc. -- and that sense must include knowing how to at least prioritize among competing notions or claims of justice.

But I'll go back to the omitted bit: "“I think your real argument is not to go back to philosophical first principles properly to conceive a theory of justice. I think it’s really concerned with the “philosophical legitimacy” of a greater emphasis on the libertarian claim.”"

No, I'd say my "real argument" here is precisely to deal with philosophical first principles of justice, which is what I took as the point of the review and of Sen's book. But it's no secret (I hope) that I view such first principles as leading toward something like a classical liberal view of justice, which, as I see it, stems from a fundamental notion of "right", and which in turn requires that there be limits to state behavior that is just -- in other words, just limits to state intervention as a means of bringing about certain conditions (e.g., maximized good, equality, capability, whatever), even if those conditions themselves are seen as more just.

The very existence of constitutions, of course -- which certainly weren't always around -- is a testament to the force of that fundamental notion. Now, maybe it so happens that the present limits, as for example embodied in the "Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791", are the correct ones -- but maybe they're not, in that clause and/or elsewhere. Either way, it's no argument to say that the mere existence of such and such a particular limit means that it's correct.

Of course, "as a matter of the “Real”", states can do whatever they both want to and have the power to do, and that will be true right up to the point at which a greater force or violence, whether internal, through revolution, or external, through war and invasion, prevents them. But it's just exactly those sorts of historical realities that have led people to want to try to think of justice in a more general and principled way, and then to try to construct states that operate, more or less, by such principles -- i.e., to set up an Ideal as a guide for the Real.

More Still on the Ideal and the Real


Larry thanks for your last email as well. Respectful disagreement in these matters is all to the good.

You are sharp immediately to hone in on “necessary”. And your assumption as to my position is right—“it's not necessary to question his presupposition in order to arrive at a usable notion of justice.” I can’t recall if I have formulated the reason why this way, but one reason is that justice as an overarching idea is necessarily implicated in the three theories. Justice necessarily includes notions of equal sharing, maximizing overall good and the primacy of individual rights as against the sharing or maximizing claims of the two formers.

So I stay a little lost in your repeated line of argument, if I’m getting it right. You say that we must give explicit and sufficient content to the overarching idea of justice. Otherwise, we are reduced to an unprincipled, arbitrary and question begging resort to one of the three theories in resolving who gets the flute in any circumstances. For Sen and Halbertal, you say, “capablities” is just another word for a circularly reasoned justification for the answer.

You have a point in that line of argument. But that point is good only if the flute's fate can be answered by some notion sturdier, more serviceable and self justifying than “capabilities”. Your notion must encapsulate justice comprehensively. That of course gets you right back to the fundamental issue: whether such a notion can be formulated and be serviceable as to, for one instance amongst many, who gets the flute. Sen and Halbertal say it cannot, as do I. It will convince no one who takes your view of the matter, as you rightly note, simply to say, “it cannot” or “it is inconceivable to me.”

But what now reemerges is that we have different notions of the meaning of justice. Yours, the very idea Halbertal via Sen argues against, is, to repeat, an encapsulating yet comprehensive theory of justice that will tell us with predictble consistency who gets the flute.

At this point it is a distraction to take on your counters to what I claimed as trite. The distraction is not because, as you say, “Now, each of your propositions and my contradictions could obviously be argued much further, taking us down that long road…” Rather, let me issue a different challenge to your “Ideal” by my resort to Halbertal’s “Real”.

My “Real”— based challenge to you is this: give me an example of any society that manifested, for better or worse, justice as anything but, analytically, trade offs, tensions, adjustments, the balancing of competing claims and so on. If you can't, and that's my presumption, you will need, I argue, to question both the utility of a long voyage and, prior to that, whether it will take you anywhere. Here I’m going to repeat what I said before because it fits:

“I think your real argument is not to go back to philosophical first principles properly to conceive a theory of justice. I think it’s really concerned with the “philosophical legitimacy” of a greater emphasis on the libertarian claim.”

To reduce this challenge to one concrete case among many: has there ever been a regime without expropriating power? For example, in America and by its Constitution, according to Wikipedia:

“The power of governments to take private real or personal property has always existed in the United States, being an inherent attribute of sovereignty. This power reposes in the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes. The legislature may so delegate the power to private entities like public utilities or railroads, and even to individuals for the purpose of acquiring access to their landlocked land. Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, "...nor shall private property be taken for public use, without just compensation". The Fifth Amendment did not create the national government's right to use the eminent domain power, it simply limited it to public use.”

Always and everywhere, I suggest to you, as a matter of the “Real”, the state can expropriate the flute.

So, I say, for the way I conceive justice, not only needn't we go behind Halbertal's presupposition, but, further, doing so is impossible for the way you conceive justice. Your conception insistently wants to get to Halbertal's “Ideal”.

Friday, December 25, 2009

American Health Care and Abortion Funding

1. Harold Pollack:

2. Blackton--my old polemical rival:

...Yes, there is nothing more important in our health care debate than to focus on the right of poor people to have non poor people pay for them slicing and dicing their unborn children.

"I have written before about people I respect who hold pro-life views, and the need for mutually respectful dialogue on these issues. I have less respect for people who use economic pressure to restrict abortions among low-income women, when more privileged Americans would not for a moment tolerate such restrictions applied to people like themselves."

utter and reprehensible bullshit. how dare you call pro life people hypocrites. Unless you have been living on Mars pro life people want those restrictions against abortion applied to everyone, rich and poor alike. But then I suppose you will call them hypocrites because some rich people would go to Canada or Europe to have abortions, so therefore you would use that as an argument to allow it here. Obviously, you are more interested in sophistry than in true respect.

I am pro life and anti death penalty, but I accept societies choice to have both. (and I do have genuine reservations about society forcing a woman by law to carry a child to term, but that doesn't mean I can't call it for what it is: an abortion) It is bad enough my tax dollars have to pay for the death penalty, but now you expect me to pay for women to have abortions as well. Look, I respect it is their choice, but how about my choice not to freaking pay for it as well.

If you are so worried about poor women having the money to have abortions, get off your ass and donate to planned parenthood, as you yourself admit the cost is not exorbitant.
I am about as big a supporter of this health care bill as there is, but listening to you inject this narrow minded laser like focus on something that is such a minor yet inflamatory part of the debate makes me have the exact opposite reaction, to dig in my heels more to not have this funding.

Just stfu about this issue until after the bill is paid, unless you truly feel that the right of poor women to have funded abortions (which they don't have now, in fact, they don't have any coverage at all) is soooo important that you are willing to blow up the whole shebang.

Afterwards, do what you want, agitate, donate, whatever. If you can get congress to finance abortions for all, then so be it, but lets get basic, affordable health care for all Americans first before you go off on that Quixotic quest. If you succeed, then hey, that is Democracy and I can live with it....

3. Me:

Blackton calm down. Let’s not, firstly, dismiss Pollack’s post by the canard that there are more important things to write about. On that theory, there’s nothing much that could be written about because there is always something more important.

Secondly let’s not cloud the issue with pure vituperation crowding out balanced analysis: "… Yes, there is nothing more important in our health care debate than to focus on the right of poor people to have non poor people pay for them slicing and dicing their unborn children..." Nice talk!

Thirdly you totally misread the part of Pollack’s post you call “utter and reprehensible bullshit”. You “argue”--to me very unclearly--that Pollack is calling pro lifers hypocrites because, well, because why, according to you:

1. is it:

Pro lifers only want to restrict the poor from having abortions when you say they want the restrictions on abortion to apply to everyone?

2. or is it:

Pro lifers will be hypocrites to Pollack because some who have means go abroad to have abortions?

3. or is it:

That some with means can afford to go abroad to have abortions is an argument for making abortions available for all in the U.S.?

I don’t really know what you are saying. But whatever it is, it’s not Pollack what is saying.

Firstly, under what I am writing about as thirdly, he is not calling pro lifers hypocrites. He’s attacking the legislation’s effective uninsuring of abortions on two grounds: 1. As a substantive matter it’s wrong to do that, he would say, as someone obviously pro choice; and 2. while those with means, and even those without much means but not destitute, can financially stick handle around the restriction, the poor and the destitute, will suffer adversely from it by not having the insurance now to be available to them cover abortions. What does this have to do with anyone being a hypocrite?

Secondly, under what I am writing about as thirdly, he is not calling pro lifers hypocrites. He is disrespectful of the legislators amongst them—specifically Nelson and Stupak, and more specifically Nelson, since Stupak got shot down in Congress— for the differential effects of their legislation on the poor and destitute. Political gutlessness and bullying are the reasons for his disrespect rather than hypocrisy. They are not being hypocritical. Rather they are putting their no doubt
principled pro life boots to the most vulnerable who can’t fight back, kicking them politically when they are down, so to speak.

Thirdly, under what I am writing about as thirdly, Pollack says that women with means would not tolerate for a minute restrictions on their right to abortions functionally equivalent to what uninsuring of abortions will do to the poor and the destitute. Somehow from this you have gotten some misconceived notion that Pollack is calling some people hypocrites, when in fact, and plainly, he is not.

Fourthly, under what I am writing about as thirdly, nowhere in his text does Pollack use the ability of some to get abortions abroad as an argument for allowing abortions in the U.S. Moreover he needn't; they are allowed up to the point, essentially, of fetal viability.

So Blackton, Pollack do dare; and he do dare with rightful intellectual impunity.

Fourthly, following my thirdly, who are you to say where your tax dollars should go? You want health care insurance available to all. The unmitigated right to an abortion up to fetal viability is the law of your land. Women’s constitutional rights to it are as legally deeply grounded as any other of their basic rights. Get that changed by political or legal processes if you can. But otherwise you must, as a principled citizen, accept the insured provision of abortions. You like other citizens cannot withhold your tax dollars going to pay for other policies of which you disapprove. No citizen can. But your federal restriction on abortion funding and the uninsuring of abortions in your health care legislation are sheer ideological instances of that. (The Hyde amendment by the way is a species of sheer ideological hypocrisy and posturing, since the states in your country can and do provide abortion funding regardless.)

Fifthly, you continue to misread Pollack throughout. Where does he say, for example, that he is “…willing to blow up the whole shebang...” over abortion funding? Unless I missed it, it’s not anywhere in what he wrote. Yet this further misreading of him is the non existent premise of about the entire last 1/3 of your self-admitted rant.

The Bet: Martin Heidegger and the Fate of $100.00

Some background is missing, lost in cyberspace. I bet my brother Muni Basman $100.00 that nobody intellectually credible and who thinks Heidegger is a worthy philosopher dismisses his philosophy because he was a Nazi. Because my brother and I often end up in disagreement over most things, we chose my daughter Aviva Basman, B.A., L.L.B., a lawyer in Ontario, as are the brothers Basman, to be our judge. I should say that my brother takes a different view of the terms of our bet. His claim is that intellectually credible people dismiss Heidegger because he was a Nazi. Aviva has ruled on this but I have lost her ruling to the vastness of cyberspace and the bowels of my hard drive. So I have doubled down on my version of the bet.


click on the site below:


My comments:

1. We need to read Faye’s book to see what his argument actually is. This is all too second hand, which is to say Faye via Patricia Cohen. Why should we take her word for anything?

2. Faye essentially suggests, according to Cohen, and we’d need to satisfy ourselves about this, that Heidegger was nothing but a high falutin hate speech and Nazi rationalizer. His writings do not amount to philosophy. How does that help your side of our bet? To wit:

“The Introduction of Nazism Into Philosophy,” calls on philosophy professors to treat Heidegger’s writings like hate speech. Libraries, too, should stop classifying Heidegger’s collected works (which have been sanitized and abridged by his family) as philosophy and instead include them under the history of Nazism.”

3. Cohen notes another version of the same argument, though we needn’t take her word for it, we can go right to the source. Romano is an Ivy League Philosophy Professor; Cohen is a mere scribe. Cohen:

“Carlin Romano, a critic for The Review, called Heidegger a ‘Black Forest babbler’ and fraud who was ‘overrated in his prime” and ‘bizarrely venerated by acolytes even now.’ ”

Romano: (Note my highlighting by italicizng.)
How many scholarly stakes in the heart will we need before Martin Heidegger (1889-1976), still regarded by some as Germany's greatest 20th-century philosopher, reaches his final resting place as a prolific, provincial Nazi hack? Overrated in his prime, bizarrely venerated by acolytes even now, the pretentious old Black Forest babbler makes one wonder whether there's a university-press equivalent of wolfsbane, guaranteed to keep philosophical frauds at a distance.

To be sure, every philosophy reference book credits Heidegger with one or another headscratcher achievement. One lauds him for his "revival of ontology." (Would we not think about things that exist without this ponderous, existentialist Teuton?) Another cites his helpful boost to phenomenology by directing our focus to that well-known entity, Dasein, or "Human Being." (For a reified phenomenon, "Human Being," like the Yeti, has managed to elude all on-camera confirmation.) A third praises his opposition to nihilism, an odd compliment for a conservative, nationalist thinker whose antihumanistic apotheosis of ruler over ruled helped grease the path of Adolf Hitler in the 1930s.

Next month Yale University Press will issue an English-language translation of Heidegger: The Introduction of Nazism Into Philosophy, by Emmanuel Faye, an associate professor at the University of Paris at Nanterre. It's the latest, most comprehensive archival assault on the ostensibly magisterial thinker who informed Freiburg students in his infamous 1933 rectoral address of Nazism's "inner truth and greatness," declaring that "the Führer, and he alone, is the present and future of German reality, and its law."

Faye, whose book stirred France's red and blue Heidegger départements into direct battle a few years back, follows in the investigative footsteps of Chilean-Jewish philosopher Victor Farias (Heidegger et le Nazisme, 1987), historian Hugo Ott (Martin Heidegger: Unterwegs zu Zeiner Biographie, 1988) and others. Aim? To expose the oafish metaphysician's vulgar, often vicious 1930s attempt to become Hitler's chief academic tribune, and his post-World War II contortions to escape proper judgment for his sins.

"We now know," reports Faye, "that [Heidegger's] attempt at self-justification of 1945 is nothing but a string of falsehoods." He Heidegger exposés, like Annie Leibovitz's tasteless photos of partner Susan Sontag in the latter's final battle against cancer, force even refined, sophisticated observers of intellectuals to gape. See "Professor Being and Time" wear his swastika like a frat pin while meeting German-Jewish philosopher Karl Löwith! Recoil at the hearty "Heil Hitlers" with which Martin closed his missives! Wince as he covertly maneuvers another Jewish colleague or student out of a job with a nasty, duplicitous "recommendation" letter!

Unfortunately, Faye's scrupulously documented study, like Jytte Klausen's controversial The Cartoons That Shook the World, about depictions of Muhammad, lacks the satirical illustrations that might have given it knockdown force. In the case of Heidegger, it may be that only ridicule—not further proof of his sordid 1930s acts—can save us.

To his credit, Faye takes the usually avoided logical step of articulating that goal. He essentially calls on publishers to stop churning out Heidegger volumes as they would sensibly desist from hate speech. Similarly, he hopes librarians will not stock Heidegger's continuing Gesamtausgabe (collected edition), shepherded by the Heidegger family, a project that Faye rightly attacks as sanitized and incomplete.

Even on this side of the Atlantic, one can share Faye's distaste for the flow of reverent Heidegger volumes. In 2006, MIT Press brought us Adam Sharr's Heidegger's Hut, about the philosopher's Black Forest hideaway in Todtnauberg.

It began with Simon Sadler asking in a foreword, "Is the hut described in this text the smallest residence ever to merit a monograph? Might it be the most prosaic, too?" A couple of quick yeses would have stopped the project right there. We wouldn't have had to read that while Heidegger's "politics were an abomination," the reader must "concede that any belief in something at Todtnauberg conducive to political crime would be essentialist." Oh, really? Sounds bad. You wouldn't want "essentialism" to make you think Heidegger's mullings at home base for 50 years had any connection to his rancid politics.

MIT, in fact, gifted us that year with a doubleheader, also offering up Heidegger's Topology: Being, Place, World. That came from Jeff Malpas, professor of philosophy at the University of Tasmania, which is about as far away from the camps as you can get.

While conceding Heidegger's true-believer behavior, Malpas wrote of "the addresses from the early 1930s in which Heidegger seems to align himself with elements of Nazi ideology," as if there were any doubt. Malpas repeated a falsehood put into play by Heidegger himself after the war, that the philosopher had resigned his rectorship "after having apparently found it increasingly difficult to accommodate himself to the demands of the new regime." For Malpas, "Heidegger's own politics cannot be taken, in itself, to undermine his philosophy in any direct way."

In that respect, Malpas revived an old standard view that Faye seeks to eliminate once and for all. For Faye, new material about Heidegger's 1930s teaching and administrative work turns a crucial point upside-down. While other thinkers, including Löwith and Maurice Blanchot, suggested that Heidegger's Nazism stemmed directly from his philosophy, Faye counters that his philosophy grew out of his Nazism, forcing us to see it as a kind of philosophical propaganda for Nazism in a different key.

Faye's leitmotif throughout is that Heidegger, from his earliest writings, drew on reactionary ideas in early-20th-century Germany to absolutely exalt the state and the Volk over the individual, making Nazism and its Blut und Boden ("Blood and Soil") rhetoric a perfect fit. Heidegger's Nazism, he writes, "is much worse than has so far been known." (Exactly how bad remains unclear because the Heidegger family still restricts access to his private papers.)

Faye pulls no punches: Heidegger "devoted himself to putting philosophy at the service of legitimizing and diffusing the very bases of Nazism," and some of his 1930s texts surpass those of official philosophers of Nazism in "the virulence of their Hitlerism. Lacking any respect for Heidegger as thinker, Faye writes that the philosopher Hannah Arendt so deeply admired "has done nothing but blend the characteristic opacity of his teaching with the darkness of the phenomenon. Far from furthering the progress of thought, Heidegger has helped to conceal the deeply destructive nature of the Hitlerian undertaking by exalting its 'grandeur.'"

Faye agrees that it was possible, even in the wake of Farias's and Ott's work, "with a lot of self-delusion, to separate the man from the work." He asserts it's no longer possible, since scholars can now access "nearly all the courses" that Heidegger taught in the 1930s.

According to Faye, "we witness, in the courses and seminars that are ostensibly presented as 'philosophical,' a progressive dissolving of the human being, whose individual worth is expressly denied, into a community of people rooted in the land and united by blood." The unpublished seminar of 1933-34 identifies the people with a "community of biological stock and race. … Thus, through Heidegger's teaching, the racial conceptions of Nazism enter philosophy."

The "reality of Nazism," asserts Faye, inspired Heidegger's works "in their entirety and nourished them at the root level." He provides evidence of Heidegger's "intensity" of commitment to Hitler, his constant use of "the words most operative among the National Socialists," such as "combat" (Kampf), "sacrifice" (Opfer) and völkisch (which Faye states has a strong anti-Semitic connotation). He also cites Heidegger's use of epithets against professors such as the philologist Eduard Fraenkel ("the Jew Fraenkel") and his fervid dislike for "the growing Jewification" that threatens "German spiritual life," mirroring Hitler's discourse in Mein Kampf about "Jewified universities."

For Faye, Heidegger's 1930s Nazi activism came from the heart. Pains takingly providing sources, Faye exhibits Heidegger's devotion to "spreading the eros of the people for their Führer," and the "communal destiny of a people united by blood." We learn of Heidegger's desire to be closer to Hitler in Munich, and his eagerness to lead the Gleichschaltung, or "bringing into line," of the German universities with Nazi ideology.

According to several witnesses, Heidegger would show up at class in a brown shirt and salute students with a "Heil Hitler!" Tellingly, Faye also mines the internal papers of the Munich philosophy faculty, showing that the department's professors considered Heidegger's work "claptrap," and saw him as so politicized that they believed "no philosophy could be offered the students" if he were appointed.

They considered appointing Heidegger only because of his well-known status as a professor favored by the Nazis. Synthesizing details with the precision of a Simon Wiesenthal researcher, Faye further undermines Heidegger's later lies that he was not involved with book burning or anti-Semitic legislation, withdrew from active support of the party after he resigned his rectorship, and became rector only to protect the independence of the universities.

"We must acknowledge," Faye says in one fierce conclusion, "that an author who has espoused the foundations of Nazism cannot be considered a philosopher." Finally, he reiterates his opposition to the Heidegger Industry: "If his writings continue to proliferate without our being able to stop this intrusion of Nazism into human education, how can we not expect them to lead to yet another translation into facts and acts, from which this time humanity might not be able to recover?"

Is it superficial to yoke wildly different cultural worlds (Daseins, if you will) together? Might much the same reasoning heard among a few Manhattan TV executives recently about David Letterman—like Heidegger, a would-be touchstone for the authenticity of his Volk—apply as well to the Meister from Messkirch? Well, Heidegger did think that Daseins intersect.

"Only the jokes can do him in," opined one savvy network veteran in the group. All agreed that Letterman would survive or fall at the hands of fellow talk-show hosts and comics torn between instincts to eviscerate and guild solidarity. No sober column by, say, The New York Times's Nicholas Kristof, analogizing Ball State University's most famous alum to a Cambodian brothel owner, would pack the requisite resonance with key audiences.

It would seem that Heidegger, likewise, will continue to flourish until even "Continental" philosophers mock him to the hilt. His influence will end only when they, and the broader world of intellectuals, recognize that scholarly evidence fingers the scowling proprietor of Heidegger's hut as a buffoon produced by German philosophy's mystical tradition. He should be the butt of jokes, not the subject of dissertations. In the meantime, we can expect Heidegger's Faux Tyrolean Wardrobe and the Specter of Carl Schmitt to roll off a university press before too long, sans cartoons or illustrative plates….

3. For Faye and Romano, no significant ideas can be distilled from what they effectively call Heidegger’s Nazi cheerleading under the guise of doing philosophy. His terrible ideas, they argue, implicate his entire work.

4. For Faye, Heidegger’s philosophy is at one with his Nazism unlike, say, in Cohen’s words, “T.S. Eliot’s poetic skills or D. W. Griffith’s cinematic technique might be appraised independently of his own beliefs”. This is exactly my side of the bet: no one will say that, like Eliot’s poetry and Griffith’s films, Heidegger’s philosophy stands alone and beside his Nazism but that because he is Nazi his separable philosophy is to be discounted. Eliot and Griffith after all were notorious anti Semites.

5.What say you? I’ll give you one chance. You can withdraw this example and therefore save yourself $100.00. Or, if you want to put your $100.00 on the line, we can submit your example to the judge.

More on the Ideal and the Real


Okay, Itzik -- I have to say that I appreciate the stimulation a dialogue like this provides and thank you for it. I also have to say, though, respectfully, that I disagree with most of your last, starting with the puzzling business about "whether it’s really necessary to go behind Halbertal's presupposition". I don't think I ever said it was necessary (I mean, it's not necessary to think at all, is it, apart from thinking about how to get through the day?), but I'll assume you're implying it's not necessary to question his presupposition in order to arrive at a usable notion of justice.

Well, but then the necessity of that is pretty much the whole point I've been trying to make, precisely because without some notion of right, whether tacit or explicit, we just don't have a usable or effective notion of justice (we'd be left just to bemoan the injustice of things, i.e.). The tacit claim to a right, in fact, is just what's contained in the presupposition, and what makes it a presupposition -- if someone then comes along and both makes that tacit claim explicit and questions it, it's not going to suffice just to say don't worry about it. (Similarly, saying that something is "inconceivable" to you is not going to have much weight when somebody else is obviously conceiving it.)

So, just to open up that long road again, I'll make my disagreements with the claims you call "tritely obvious" explicit:

"[Justice]’s standpoints necessarily include what is best for individuals, what is best for the groups they organize themselves into, and what is best for the group in the interest of promoting overall betterment." No -- regardless of utilitarianism, "justice" is not a god, nor are its human administrators, and has no standpoint from which to make such judgments. Individuals, of course (and the voluntary groups they're part of), do make such judgments for themselves because that's their business, but it's neither the business, nor within the capacity, of justice as such.

"It necessarily involves the allocation and distribution of resources." No -- regardless of egalitarianism, neither justice in the abstract nor its human administrators have any proper claim to resources that individual human beings produce and trade (though justice may be involved in resolving disputes in such matters).

"It necessarily involves proportionality in the balancing of the conflicting claims." No -- though I suppose that some kind of "proportionality" might occasionally be a factor in dispute resolution, justice in a particular conflict is a matter of both facts and rights, not some necessary "proportionality".

"... there is no overriding criterion that can answer absolutely and with certainty all the competing claims that necessarily issue out of people in social arrangements." True, but only in the (now indeed "tritely obvious") sense that absoluteness and certainty are never obtainable in the real world -- that's not an argument against the quest for an overriding criterion of justice that we can use to resolve conflicts, however contingently, when different such criteria themselves conflict.

Now, each of your propositions and my contradictions could obviously be argued much further, taking us down that long road, but my point in this exchange is really just to say two things:

- first, that it's important to continue to try to think about these matters in a more systematic and general way, as opposed to contenting ourselves with merely making lists of old criteria, and saying we can pick and choose from them as we like;

- and second, that the review in this case I think miscast the meta-issue of justice by framing all items in that list of old criteria as though they were of the same kind, or on the same level, when actually one of them logically/morally precedes the others. (In saying that, by the way, I'm not necessarily privileging property rights as such, but simply saying that the notion of "right" of some sort must be a fundamental component of justice.)

(One more btw: I think the reviewer, and presumably Sen, agree with the need for an overriding criterion of justice to resolve conflicts between other criteria, and this explains the somewhat tortuous resort to a notion of maximizing "human capabilites" -- which looks to me like just a species of utilitarianism, with "capability" substituting for "good".)

Which is as far down the road as I can go for now at least. Well, except for maybe one observation I can't resist. In our discussions on similar topics, there comes a point where you bring up "liberal democracy" in a tone that has a kind of "best of all possible worlds" ring about it to me. I may be wrong, and in any case I'm a fan of liberal democracy myself, as against its alternatives of fascism, communism, or various flavours of theocracy.

But I would say that, just as it was important for people to be aware of the flaws of older systems in order to bring about what we currently call liberal democracy, so it's important now for people to be aware of liberal democracy's flaws in order to move, carefully but surely, toward something better. Another reason why it's essential that we continue to be able to think about more fundamental matters than processes and procedures -- i.e., what the processes and procedures are for -- so that we can be aware of their limitations. And the primary reason why I am not a conservative.

This awaits response from me, which will follow shortly.

Naming Evil as a Premise of U.S. Foreign Policy and Obama's Nobel Speech


2. Commenter "noahkgreen":

I am surprised that Cohen and Loury seem to have missed the entire point of Obama's Nobel speech, and all because they get fixated on the word 'evil'.

They argue that Obama's statement that there is evil in world shows that Obama believes the U.S. to be inherently just. Yet this is decidedly not Obama's point! Obama believes that the U.S. must restrain and be judicious in its power because it is capable of such great injustice!
Or, as the relevant quote from the speech goes:

Adhering to this law of love has always been the core struggle of human nature. For we are fallible. We make mistakes, and fall victim to the temptations of pride, and power, and sometimes evil. Even those of us with the best of intentions will at times fail to right the wrongs before us.I am saddened that Cohen and Loury have completely ignored this point and have instead, decided to be fixated on why the word 'evil' makes them profoundly uncomfortable--instead of engaging with the whole speech.

3. Me:

To Noahkgreen:

I just finished listening to these guys, both of whom I have a lot of time for, even though I don’t have time these days for much of anything. I then thought I’d glance at a few comments to see what was cooking.

I stopped at the first one—yours.I stopped because I never took from anything they said (or I just plain missed it) their view that Obama asserted in his Nobel speech the inherent nature of American goodness. Nor did I take from anything they said (or I just plain missed it) a line of reasoning that goes: Obama said there is evil in the world; therefore that shows he believes, to use your posted words, "America is inherently just".

My understanding of what they said is that it is not helpful in analyzing, or explaining, America going to war, or waging it, to speak of needing to defeat evil. That high moral rhetoric distracts us, I heard them to say, from a sober and explicit assessment of the reasons for war. And at West Point, I thought they said, those reasons were woefully lacking.

I think I disagree with Cohen and Loury to this extent: there ought be nothing wrong with calling evil evil. There ought be nothing wrong with calling as evil, for an instance amongst many, fanatical Muslim extremists who, for an instance amongst many, make vulnerable civilians direct and explicit military targets. And there ought be nothing wrong with setting as a foundation for American policy the recognition of evil where it is coincident with the necessary vindication of high American interests.

A problem for Obama in doing so may be the elusive vagaries of the reasons for American war policy in Afghanistan; which is to say, it may be, for Afghanistan, the innate difficulty of cogently answering Cohen’s two good questions: should America engage the battle; and if so, can America win, can it achieve goals justifying the inevitable maiming and loss of life, the destruction, the financial costs and other costs?

So my question is whether Cohen and Loury are making a specific point of the unhelpful invocation of evil by Obama concerning Afghanistan or are they inveighing against the invocation of evil as justification for war as a general proposition? The first branch of that question is, at a minimum, a fair and arguable criticism. The second branch needs pruning and trimming.

I have not revisited Obama's Nobel speech since he made it. But, surely, his main point was not America’s and others’ need to recognize their fallibility. For, in itself, this says hardly anything at all though it sounds portentous: it is but a truism that no one sensible would or could disagree with.

Consider though Obama’s three general Nobel theses. The first is that at times a just war is the only way to a just peace. The second is that in waging such wars restraint is always necessary. And, finally, the third is that a wise foreign policy is comprised by a balanced and flexible pluralism of approaches ranging from quiet diplomacy to sanctions and other varying pressures and ultimately to war itself. In the advancement of these ideas over the course of his speech, the recognition of national fallibility has some good, important and moderating work to do.

Wednesday, December 23, 2009

Hold That Tiger

Pretty bland exchange by and large I’d say, and I tuned out—being Canadian— when these guys started talking about college football. Except: it was intellectually infuriating.

It was extraordinary for me to hear Lipsyte’s appalling schadenfreude over Tiger’s troubles. These guys, I would bet, decry an American popular culture besotted with mind numbing, dehumanizing triviality, of which reality television and degenerate notions of celebrity-as in being famous only for being famous -are an apotheosis. These guys, who I never before heard of, in their by play over Tiger’s troubles went on and on about how unprepossessing he is, how robotic, how uninteresting. Maybe that’s all so. So fucking what?

My question is: why isn’t it enough for them—they are sports writers—that he is, let’s stipulate, the greatest golfer ever? On what basis do they get to expect any other talents and accomplishments from him (which he may or may not possess) and complain about what's lacking? Why isn’t his sheer golfing brilliance sufficient? That is all he asserts; that is all he would claim to be judged by.

Here is an irony flowing from their misapprehension of what is important: for all that they misconceivedly demand of Tiger apart from his athletic brilliance in his chosen sport, the only basis for legitimate judgment of him—he has broken no laws, after all, these guys, to the extent that their exchange is a window into their professional abilities, seem to me to be utter mediocrities—bland, unthinking, shallow, fundamentally uninteresting and imperceptive and unself aware.

Finally, I’d argue that their failure to understand how unforgivably far they are from what is truly important about Tiger is of a piece with their unwitting immiseration in the very horrifying banality they would decry. For only that, I’d contend, could distract them from Tiger’s greatness and could allow for their preoccupation with the intensely private matters of his own life and soul.

Sunday, December 20, 2009

Further to The Ideal and the Real


I do not find much to disagree with either re Sen or Halbertal. I will say that I'm astonished not to find the name of Aristotle in the article. Sen is just updating Aristotle. Aristotle rejected the very idea that there can be any such thing as a grand theory (in his case, Plato's) providing us with a summum bonum (a Grand Yardstick) for measuring claims and deciding cases. He does not think there can be such a thing, and thinks that we have to rely on precedent, common sense, and the common decencies. These provide us with rough and ready guides to judgements in particular cases. Such judgements are always defeasible, can be appealed, amended etc. He does not think that there are any principles of justice that are carved in granite. If there were such principles, then theoretically all cases are implicitly already decided, and no judgement is required for settling them, just a sound capacity for logical inference. The attack on Rawls is all to the good. I think he is much overrated. If you can find it you should read Martha Nussbaum's "Aristotelian Social Democracy". She was once Sen's 'other', and had some influence on his thinking. God only knows its locus; I do not remember, but maybe you can find it.


I…found Don's comments re: Aristotle enlightening, and I'd say that they at least provide a way out of the dilemma regarding "grand theories" that I find in the review (if not Sen himself), which, apparently, is by abandoning such theories altogether. This leaves you, as Don says, with “common sense", "common decencies", and the practical addition of precedent as guides for policy-makers. I think myself, though, that while such a reliance may work tolerably in more static, traditional societies, it’s not going to work well in more changeable ones (consider, e.g., slavery, the position of women, homosexuals, etc.) where "common sense" and conventional prejudice can be indistinguishable. One of the reasons I don’t label myself a conservative, though I'm content enough in the current climate, with right wing".


The way out of the “dilemma regarding ‘grand theories’” suggested by Don in his comments on Aristotle, I’d argue, is consistent with the way out of it suggested by Halbertal via Sen. Don is casting the essay back into a certain unacknowledged philosophical tradition, and is not saying anything different in doing so than is said in the essay itself. After all its brunt is the jettisoning of grand theories of justice. But I don’t see clearly how the resort to the Aristotelian criteria resolves the dilemma you point to—how to choose amongst competing visions of justice in any given situation. I tried to suggest that “capabilities” is the touchstone for radical flexibility working itself out in making policy choices. The unsettled issue for me now is whether that touchstone—, which, it can be argued, is compatible with the Aristotelian criteria (or else they simply fly into incoherent space)—makes coherent a truly pluralistic approach or is, as you suggested, a disguised “Fourth Way”. If the latter, it undermines the very extinction of grand theory it purports to supplant. I can’t work that out in my own mind.


Well, first, the "resort to Aristotelian criteria", as presented by Don, is just a resort to common sense, common decency, and precedent, as opposed to "competing visions of justice", which at least gets you out of the dilemma of how to choose between such visions. Not to say that common sense, etc. doesn't lead into more practical problems of its own -- it does -- nor that, as I say, in highly dynamic societies in which social conditions undergo major changes, common sense etc. will suffice to resolve deeper issues -- it won't.

So, second, I don't think we can really do without theory (not "Theory") of a more limited sort in this area as in others. I mean by theory just an attempt at consistent thought regarding underlying principles of justice, not an attempt at some comprehensive, final "grand theory". Such a more limited and modest attempt might very likely result in multiple underlying principles, but would aim at specifying a hierarchy among them, so that the lesser principles would only apply other things being equal -- leaving plenty of room for pluralistic notions of justice, but not relativistic. And along those lines, I'd say that a logical first step would be to raise the question of what anybody has a right to do before we try to say what policy makers and enforcers should do.


Rather than argue with you over whether Don means by “common sense, common decency, and precedent” something different than what is encompassed by competing theories of justice, let me start to agree with your second paragraph but ask, not to argue—at least not at this point— but to understand, what distinguishes consistent thought underlying principles of justice from just another overarching theory? What anybody has a right to do seems not such a big problem for me but perhaps I am missing the full implication of the question.


To be honest, I'm not sure there's much distinguishing theory from so-called "grand theory" apart from the adjective. I'm also not fond of "over-arching" as an adjective and prefer the bottom-up implications of "underlying". But I wouldn’t want to spend much time on such terms or distinctions, and would agree to alternative terminology for the sake of the argument. Re: what anybody has a right to do, though, much more hangs upon it. Do we have a right, for example, to force people to live according to our particular theory of justice, or the particular one we rely on in a particular situation? I know of course that we have ways of resolving that kind of question practically here and now --through our present more or less democratic, more or less constitutional processes -- but the point of it in this kind of discussion is to question precisely the justice of those processes. And in that questioning, the idea of "right" operates on a kind of meta-level, as I see it, preceding the effective operation of the principles of justice.


I may be missing it but I’m still not getting the import of your question. That may be because we—or at least I—have not sufficiently refined the relation between the philosophical and the practical or real even within the terms of Halbertal’s opposition between “The Ideal and the Real.”

I see Halbertal via Sen trying to account for what informs and ought to inform political decision making. The ability, and right, of the governing with the consent of the governed to make policy choices grounded in competing notions of justice seems to me presupposed by his exercise. What am I missing?


"The ability, and right, of the governing with the consent of the governed to make policy choices grounded in competing notions of justice seems to me presupposed by his exercise."

Yes -- and thanks for putting it so clearly finally. So the point of my question, then, is precisely that presupposition, which, I'm saying, needs to be examined, and its limits understood, before we can begin to "make policy choices grounded in competing notions of justice", choices that can be -- legitimately -- forced on everyone. That would include, clearly, looking closely at exactly what's contained in, meant, or entailed by, a nebulous phrase like "consent of the governed".

Take the parable that the review started with, of the three girls and the flute -- regardless of how you or I or Sen or anyone or any group decide upon the competing notions of justice there, who has the right to take the flute away from the girl who produced it in the first place? Are such coercive rights unlimited or are there (i.e., ought there to be) limits to the use of force even in the service of a particular notion of justice?

This may be going beyond the scope of the review, I admit, and that's at least partly why I'm trying to keep my comments short, and mostly limited to questions. (Partly also because, I'll admit again, the issue is complicated, and to go much further would be to get into thickets that would take some time and space to even try to clear.) But I wanted to get at something that I think underlies much of modern left wing thought, from contemporary liberals to social democrats, to democratic socialists, to olde time commies, which is simply to assume that once we -- whoever "we" are -- have settled on a notion of justice, we have an obvious right to go ahead and force that on everyone. Once that assumption of right is questioned, then a phrase like "consent of the governed" starts to look suspiciously like mere hand-waving or worse.


The “consent of the governed" is at the root of certain philosophical accounts of the democratic state which are based on the metaphor of a social contract. But I am saying, taking Canada or the America as real world examples, if by these states’ rules a majority or plurality votes in a regime and the regime exercises power as delimited by constitutional limits on that exercise then what’s the issue? If right leaning libertarians deregulate as a function of their political vision, so they do. If left leaning liberals impose statist informed regulation so they do. We can throw out the bums and get new bums.

So for me the consent of the governed cones down to the social glue that binds disparate people in a state such that they live within the law in the face of policies they disagree with. That for me is captured by the word legitimacy. I tend to think that the sources of legitimacy are more actual, pragmatic and contingent than they are philosophical. So I am still having trouble seeing what you are getting at by wanting to go behind Halbertal’s presupposition.

Take the parable that the review started with, of the three girls and the flute -- regardless of how you or I or Sen or anyone or any group decide upon the competing notions of justice there, who has the right to take the flute away from the girl who produced it in the first place?

I have encountered a form of that question before about the essay. When I read the essay I of course asked myself who should get the flute and concluded without question that it should be its maker. But I began to think that the typology of the three claimants was meant as a plain spoken microcosm for the issues raised by the question of justice in the context of social needs that belie the simplicity of the seemingly—I guess at least to you and I—obvious answer. Isn’t taxation a primary example of this?

Finally you must have something on your mind as to the ground for the limits on state action that you want to argue for that is deeper than the positivist account I have briefly sketched. What position would

Ps One caveat and exception to my small positivist sketch: a state in order to be legitimate, I'd argue, must have at its foundation the rule of law and some operational version of the rights, liberties and values broadly set out in the American Bill of Rights and most parts of the Canadian Charter. (I can live without, for example, the enshrined constitutional status accorded in the Charter to Canadian Indians.)

Ppss Is there a problem with my p.s.? Am I saying that China for example is not a legitimate state? It's certainly one on any positivist account of what a state is. I guess I'm thinking there is a spectrum of legitimacy and that ranges from simply a state functioning with such minimum social coherence as allows for that and is one step above a "failed state" to liberal democracies at the imperfect higher end of the spectrum.


First, I think we need to understand that when we're trying to deal with a theory or theories of justice, we're dealing with matters on a fairly fundamental philosophical level already, and we can't wave our hands and point to other "certain philosophical accounts" as any kind of or any part of an answer to the questions we're raising. Still less can we invoke existing political arrangements as solutions to these sorts of questions.

On the level at which this review and this email discussion began, in other words, the question of justice can't presuppose process-based answers; we can't presuppose, e.g., that we obtain justice just by a periodic majority or plurality of votes to elect representative bums to vote again to decide particular issues by majority/plurality/whatever as constrained only by an existing constitution/bill of rights/charter/whatever as interpreted by a vote again of a majority of some number of judges who were appointed or nominated by some part of said bums and who have or have not gone through some sort of vetting/voting process by the same or different bodies of bums -- which is, simplifying it greatly, more or less what "consent of the governed" currently means in Canada and the US. Unless, of course, what you want to say is that that is your theory of justice -- that whatever such a meat-grinder churns out just is just. And in that case, going back to the review, we're maybe up to a Fifth Way now.

But I'm hopeful that's not really what you want to say. In any case, my take is that, while such unavoidably messy processes may be necessary to reach political accommodations in the short term, and their results acquire thereby a certain political legitimacy (for anyone not a revolutionary, and that includes me), they don't even address the more fundamental questions of philosophical legitimacy that are raised by issues of justice. (And if you object to "legitimacy" being used in this two-level sense, then you need at least to be prepared to say that something can be both just and illegitimate, or legitimate and unjust.)

So, second, on that issue of justice again, I think (with respect) that you misunderstand the point of my question about the parable -- it wasn't to ask again the same question that was asked in the review, namely, "who should have the flute?", but rather, in a sense, to call that question itself into question. Asking that question before asking the question of who has the right to dispose of the flute in the first place is to presuppose that someone or some group has the (philosophical) right to take the flute out of the hands of its maker. If I question that presupposition -- and I do -- then merely invoking the sorts of processes described above isn't going to provide an answer, since the question concerns the more fundamental one of the philosophical legitimacy or justice of the right.

And all of this is to say -- getting now to your question of the (philosophically) legitimate limits to state action -- that in my view the framing of the issue of justice in that parable, and hence in the review and presumably in Sen generally, is flawed. This is because one of the three principles of justice put forward (or four if you include maximizing "capabilities") is not like the others -- maximizing good, or capability, or equality all have to do with particular conditions of society, but say nothing about how such conditions might justly be brought about.

You might, of course, want to say that once we know what a more just social state involves then anything that brings it about is justified -- but it's that sort of thing that has lead to some of the last century's worst examples of large scale political horror. On the other hand, a notion of justice that starts with a notion of rights is free from that kind of dilemma -- and indeed I think such a notion precedes, or is implicit in, any other decent notion of justice that aims at some ideal or improved condition.

So, I'm saying, the principle of justice that raises the issue of rights should be distinguished from the others that are looking just at the end result of policy, and should be both primary and explicit. It's that issue of rights that constitutes the ground, at least, for the limits of state action, such action meaning anything from taking a flute away from the one who made it to, as you say, taxation in general, regulation, and the whole panoply of coercive state behavior.

Which is just the start of a very long road....

ps of my own: I think the issue of what constitutes a legitimate state, and what makes fro greater or less legitimacy as such is an interesting one in its own right, but, as I've tried to say, is distinct from the issue of what constitutes justice, which I took as the question at hand. These aren't unrelated issues, but my point has been that the latter is at a more fundamental level than the former -- that is, we might be able to judge state legitimacy on the basis of a theory of justice (among possibly other things), but it would really be backwards to try to assess a theory of justice on the basis of a judgment of state legitimacy (based on what? Feelings? Thin air?)


In answer to your most thoughtful email, and before we go down a long road, consider whether we really need to, whether it’s really necessary to go behind Halbertal's presupposition.

I am not about to, nor could I, define justice in any way that even pretends to be close to dispositive. (And being the subtextual detective I am, I think you want to get to a conception of rights and justice that doesn’t allow for authority taking away the maker's flute. If that's right, then that seems inconceivable. But I digress.) My argument for immediate purposes is that we don't need to travel, that we can stay right here at home with Halbertal presupposing, as we agree he does, "The ability, and right, of the governing with the consent of the governed to make policy choices grounded in competing notions of justice…”

Justice involves necessarily people—it could be just two—in some relation to each other. It necessarily involves judgments about their acts and omissions concerning others and the group they live within; and it necessarily involves the acts and omissions of the group as reflected in the regime. Its judgments necessarily go to the boundaries for individuals’, groups’ and the regime’s actions and omissions towards each other. Justice’s standpoints necessarily include what is best for individuals, for their groups, and for the regime in promoting overall betterment. It necessarily involves the allocation and distribution of resources. It necessarily involves proportionally balancing conflicting claims. And not necessarily, but as Sen, Halbertal and I (only modestly) argue, no overriding criterion can answer absolutely and certainly all these competing claims.

This brief excursion is encapsulated by the triad of theories Halbertal via Sen sketches. They are not exclusive by any means; nor are they meant to be. The invitation is open to other theories. But Halbertal’s three are to hand. They generate in their diverse emphases an analytical distillation of the claims to justice. And they represent a pragmatic assessment as to liberal democracy. Manifest in the values and principles enshrined and reasonably operational in, for example, North American Constitutions, liberal democracy promises the best chance for justice fulfilling itself in people’s lives.

So I don't argue for a theory of justice (or the state) justified by “process” such as the tripartite division amongst the executive, the legislature and the judiciary or elections. Rather, I suggest, the fundamentals of North American democracies, and of other operational democracies, instance justice when, generally, conduct approximates ideals.

So I quarrel with you about the sturdiness of Halbertal’s question (though I readily admit that I failed to get the point of your question about it and may still do). My quarrel, consistent with not needing to go behind his presupposition, is that we needn't go behind his question in the way I read you to do:

“..Asking that question before asking the question of who has the right to dispose of the flute in the first place is to presuppose that someone or some group has the (philosophical) right to take the flute out of the hands of its maker. If I question that presupposition -- and I do -- then merely invoking the sorts of processes described above isn't going to provide an answer, since the question concerns the more fundamental one of the philosophical legitimacy or justice of the right…”

For, insofar as Halbertal recognizes the libertarian theory of individual rights and freedom from the regime, he gives voice and pride of place to that theory. I cannot imagine a notion of justice that does not, of necessity, justify taking the maker’s flute in certain situations. That taking is to be properly understood as the strength then and there of either—given Halbertal’s typology— egalitarian or utilitarian claims .

I think your real argument is not to go back to philosophical first principles properly to conceive a theory of justice. I think it’s really concerned with the “philosophical legitimacy” of a greater emphasis on the libertarian claim. My argument is that justice will never resolve itself in the sheer primacy of one of these theories. They will endlessly compete with each other, endlessly argue with each other, in the fray of liberal democratic politics. They will be pragmatically adjusted by policy makers and the electorate by their lights, principles and practical concerns as conditions and circumstances change.

Tuesday, December 15, 2009

Habeas Corpus

"...Habeas corpus (You (shall) have the body[1) is a legal action, or writ, through which a person can seek relief from their unlawful detention or that of another person. It protects individuals from harming themselves or from being harmed by the judicial system. Of English origin, the writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

A writ of habeas corpus ad subjiciendum, also known as "The Great Writ", is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody.

The prisoner, or another person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. The British jurist Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."

The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v. United States were heard by the Supreme Court of the United States on December 5, 2007. On June 12, 2008, the U.S. Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition.

The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari.

When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.
The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority.

The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof...."

Quantum Meruit

"...Quantum meruit is a Latin phrase meaning "as much as he has deserved". In the context of contract law, it means something along the lines of "reasonable value of services".

In the United States, the elements of quantum meruit are determined by state common law. For example, to state a claim for unjust enrichment in New York, a plaintiff must allege that defendant was enriched; the enrichment was at plaintiff's expense; and the circumstances were such that equity and good conscience require defendants to make restitution.

Quantum meruit is the measure of damages where an express contract is mutually modified by the implied agreement of the parties, or not completed. While there is often confusion between the concept of quantum meruit and that of "unjust enrichment" of one party at the expense of another, the two concepts are distinct.

The concept of quantum meruit applies to the following situations:

I. When a person hires another to do work for him, and the contract is either not completed or is otherwise rendered un-performable the person performing may sue for the value of the improvements made or the services rendered to the defendant. The law implies a promise from the employer to the workman that he will pay him for his services, as much as he may deserve or merit.

The measure of value set forth in a contract may be submitted to the court as evidence of the value of the improvements or services, but the court is NOT required to use the a contract's terms when calculating a quantum meruit award. (This is because the values set forth in the contract are rebuttable, meaning the one who ultimately may have to pay the award can contest the value of services set in the contract.)

II. When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for a quantum meruit on an implied assumpsit. However, if there is a total failure of consideration, the plaintiff has a right to elect to repudiate the contract and may then seek compensation on a quantum meruit basis.

I. An example is usually as follows:

A Man talks to a neighbor and tells him he's going to build a wall on their property that will give a benefit to both the man and his neighbor, the Man implies that it would be cheaper for both of them if the Man perform the labor instead of hiring a professional. The neighbor agrees that the wall should be built, but no price is negotiated. The man builds the wall, and then asks the neighbor to compensate him for the benefit of the wall that he conferred on the neighbor (usually half the value of the wall).

The neighbor refuses.

The man is entitled to some compensation based on quantum meruit. This is because there was an implied promise between the man and the neighbor, which is derived from contract law, because the man was acting under the assumption that the neighbor would pay for part of his services The plaintiff files suit in court on the basis of quantum meruit. The plaintiff makes an estimation of value conferred on the defendant, which the defendant has not paid. Plaintiff will likely win because of quantum meruit. The winning of the case will be directed as an assumpsit on a quantum meruit. Day v. Caton, 119 Mass. 513 (1876).

In Canada, 'quantum meruit' is not based on contract law but rather depends on equitable principles of unjust enrichment. Estoppel allows an implied promise to act as a shield against litigation but never a sword. Therefore an implied promise would not create a cause of action. Instead 'quantum meruit' is based on the need to prevent the neighbor from unjustly enriching himself by allowing the fence builder to proceed with the work based on an assumption that he would be compensated.

II. This is not the only factual scenario where this will work. Quantum meruit will also work where there is a beached contract.

A contractor is contracted to work on a school. The contractor does some work but then quits (breach of contract). The contractor is entitled to be paid for the services he has already done for the school on the basis of quantum meruit (however the school may be entitled to damages arising out of the need to look for a new contractor).

III. If a plaintiff is prohibited from completing work based on a long term service contract where other contracts have been negotiated, the plaintiff may ask a court to determine a judgment based on the amounts that the defendant benefited. Third parties may also bring actions against the plaintiff.

IV. A Promoter enters into a long term service contract with a Theatre to exclusively present events for a specified period. The promoter books events and contracts with others to perform during the entire period but alleges that the theatre is unsafe. The Promoter withholds payments until the theatre is made safe.

The Theatre performs no repairs. Instead the Theatre terminates the entire service contract before the benefit of the events occurs to the plaintiff and refuses to repair the theatre. After the contract is terminated, the theatre operates the events negotiated by the promoter and gains a significant benefit but does not pay the promoter anything. The theatre also cancels some events without cause. A court determines that the promoter is entitled to an assumpsit on a quantum meruit...."


...Historically, detinue came in two forms: "detinue sur bailment" and "detinue sur trover".

In detinue sur bailment, the defendant is in a bailment relationship with the claimant and either refuses to return the chattel or else has negligently or intentionally lost or destroyed it. The onus is on the bailee to prove that the loss of the chattel was not his or her fault.

In detinue sur trover, the defendant can be any individual in possession of the chattel who refuses to return it to the claimant. A defendant could be a finder or a thief or any innocent third party, and the claimant need only have a better right to possession.

Early writs and forms of action were exceptionally narrow in scope. This is reflective of the basic conservatism of the Common Law courts in the middle and late medieval period. This was in contrast with the Courts of Equity which were creative in producing novel writs for many new fact situations. Compensation in those days was usually not in money. No one had much money.

Wealth was measured in land, cattle, horses and furnishings. When a harm was done, it was often from the loss of these things. What the plaintiff wanted back was the land, cattle or even coins lent. Maitland suggests that in the earliest time the writ of debt seems almost to have been designed to recover identical coins.

The early writ of detinue was specifically designed for recovery of a chattel wrongfully detained, but not an action to recover loss due to a chattel being harmed with while the defendant had it.

Two facts marked the early common law actions. They were defective because of the wide field which was excluded. They were also defective because the plaintiff might well think himself entitled to a remedy, but by reason of the procedure find that he went away empty. The defendant to a writ of debt or detinue might bring others with him who would swear that his denial of the claim was true.

This was technically called his “wage of law” or “wager of law”. It was enough to dispose of the plaintiff’s claim. A common way to escape all writs, even the writ of right, as well as debt and detinue was to claim sickness. If the jury found him in bed with his boots off, the custom was to delay the writ for a year and a day. .."


"...Trover actions frequently concerned the finding of lost property. It could also involve cargo on ships, such as those lost at sea and later found. Trover often involved cases in which the "most correct" owner could be determined. For instance, if an envelope of bank notes or currency were to be found, the court would attempt to identify the true owner. Often this would prove to be impossible. In that case, the finder would be the next best owner and be considered the possessor. Trover cases have been described as "finders keepers, losers weepers" cases.

Trover damages came to be measured by the market value of the object, not necessarily its replacement cost if it were new. Sometimes, compensation for deprivation of use and compensation for other losses naturally and proximately caused by the wrongful taking could be added. Case law results are mixed. The plaintiff could also recover interest that would have been earned by the money value of the object and any expense (except attorney's fees) incurred in attempting to recover the object. If the taker sold the object for more than its market value, the plaintiff could receive the higher price.

However, selling the chattel could change the action to that of a true conversion (law) which was a form of theft. If the taker had made improvements on the object (e.g., repainted it), the value of such improvements are not deducted from the plaintiff's recovery unless the taking was by mistake. Early trover cases involved the keeping or taking of a bailment by the bailee (the person charged to hold them with "ordinary care").

Others concerned the use of lost chattels found by another. Who was the real owner? Early on, there was difficulty in dealing with situations where chattels held by a bailee were used by a third party. Examples could be sheep, horses, farm goods, grains or other chattels left in the care of a person who was required to engender ordinary care. If negligence led to damages, an action could be had.

A third person might use the chattel, returning it in a damaged condition. The early common law had some difficulty in dealing with this kind of situation. This led to expansions of actions in trover. Although actions in trover can be traced to the time of Bracton, and later Edward I of England, it became more clearly defined later during the reign of Henry VI of England, 1422-1461 and 1470-1471. Action in trover became a mature legal doctrine during the reign of Elizabeth I of England, 1558-1603...."


"...Assumpsit ("he has undertaken," from Latin, assumere) is an action for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing.

Assumpsit was the word always used in pleadings by the plaintiff to set forth the defendant's undertaking or promise, hence the name of the action. Claims in actions of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit[1], brought usually on an implied promise, and (b) special assumpsit, founded on an express promise.[2]
The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales.

Assumpsit as a form of action became obsolete in the United Kingdom after the passing of the Judicature Acts of 1873 and 1875.

In the United States, assumpsit, like the other forms of action, became obsolete in the federal courts after the adoption of the Federal Rules of Civil Procedure in 1938. Most if not all states have moved to similar rules, which replace the various forms of action with the civil action. However, many states continue to recognize assumpsit as a common law or statutory cause of action..."

Action on the Case

"...One of the old common-law Forms of Action that provided a remedy for the invasion of personal or property interests.

Action on the case is also called Trespass on the case because it developed from the common-law action of trespass during the fifteenth century in England. Often it is simply called case.

Case differs from trespass in that it redresses more indirect injuries than the willful invasion of the plaintiff's property contemplated by trespass. It was designed to supplement the action of trespass. For example, a person struck by a log thrown over a fence could maintain an action in trespass against the thrower. If, instead, the wrongdoer tossed the log into the street and the plaintiff were hurt by stumbling over it, the plaintiff could maintain an action on the case rather than in trespass.

In Pleading an action on the case, the plaintiff sets forth the circumstances of the entire case. In pleading an action on the case, the complaint differed from the forms used in pleading other actions because other actions generally had highly stylized and rigid forms that had to be followed word for word.

The plaintiff in the action on the case alleged facts to show that (1) the defendant had some sort of duty; (2) the defendant had violated that duty; and (3) the result was harm to the plaintiff or the plaintiff's property. Over the years, this action developed into a remedy for a wide variety of wrongs that were not redressed by the other forms of action.

For example, a plaintiff could sue a defendant who maintained a Nuisance in the neighborhood; who violated an Easement or a right of way; or who committed libel, slander, malicious prosecution, fraud, or deceit. Most importantly, the action on the case came into common use as the legal method for compensating victims of Negligence. It thus became one of the most widely used forms of action in the common-law system and gave birth to the modern law of torts.

When Ejectment was still considered a modern improvement on trespass in England, it already had been abandoned in New England because of its complicated technical requirements. One of the reasons for the American experience is that law books were scarce in the colonies, and many judges were laymen. The most rigid applications of technical formalities came during the first half of the nineteenth century after lawyers gained influence in the legal system.

Dissatisfaction with the technicalities of the forms soon began to peak. Code Pleading was then introduced to replace the prior forms of action. An attempt was made to reduce the number of writs to some basic few that would be adequate for all of the different requirements of modern litigation. Attention was shifted from the form to the elements of a Cause of Action. Courts asked only whether the plaintiff had stated a claim on which relief could be granted. The objective was to decide whether the plaintiff was entitled to a remedy with as little procedural red tape as possible. When code pleading fell short of this goal, the modern law of Civil Procedure developed the theory that there should be only one form of action, the civil action...."

The old forms of action exist today only as names for procedures based on them and as the foundation of much of the Substantive Law. In Pennsylvania, for example, the word trespass is used for tort actions, and assumpsit for lawsuits based upon contracts.