Monday, April 30, 2012

Global Warming and Shallow Discourse

I am a fairly opinionated person, but there are a few topics of conversation that cause me to slink into the background. Global warming is one of those things. No matter who I am talking to, I do not want to be caught agreeing or disagreeing with anyone. It is too easy to be pigeon-holed, and there are a number of separate issues that require careful consideration.

1. First there is the more general question to consider: is climate change an anomaly, or a frequent occurrence in the earth’s history? To the Doubters, I would say: since it is likely that climate change has taken place numerous times already, it does not seem reasonable to be so dead set against the notion that it could ever happen again. To the Believers: what kind of extraordinary pride would cause anyone to believe that we can prevent climate change from ever occurring again? There are some very interesting questions wrapped up in this issue that are completely lost in the discussion about climate change; chiefly, can humans ever completely control their environment?

2. Second, there is the issue of our treatment of the earth and its resources. One thing I don’t like about the global warming controversy is that anyone who does not jump on the bandwagon is charged with apathy toward environmental issues. In fact, I am very concerned about destruction, waste, and pollution. I believe that this, along with poverty, is one of the most horrific consequences of capitalism and industrialization. Furthermore, it troubles me that people allow their pro-business interests to trump any potential concern about beauty, sustainability, and health.

3. Finally, there are the very specific issues of the scientific basis of global warming and its perceived effects. This is where things really get interesting. For one thing, it irks me when people are admonished for being even remotely skeptical of the proclamations of experts. I thought that skepticism was something that our liberal society, and science above all, was supposed to value? Scientists are people, and science is a human activity. Thus, while I think it is entirely possible that some sort of climate change may be in the works, I do not think that scientific models and discourses necessarily correspond exactly to that reality. Most of all, I do not appreciate the expectation that I have to swallow hook, line, and sinker everything that scientists say. (Given the history of racism, sexism, and homophobia in scientific research, this should not be seen as an imprudent attitude.) Another thing that I find unsettling is the way in which Global Warming (as a grand unifying theory) is used to explain every minute meteorological occurrence. Perhaps it is only among my own circle of friends and acquaintances that any deviation in expected weather patterns is attributed to global warming, but it functions too much like the Secret Global Ruling Elite that conspiracy theorists use to explain all current and historical world events. We may have a desire to find unifying causes to simplify our confusingly complex existence (my own tendency in this direction – one that I work carefully to check – is to hold capitalism as a unifying cause), but hopefully we can recognize that such proclivities often cause us to distort reality and blind ourselves to some of the most interesting and mysterious aspects of our existence.

What I fundamentally dislike about the discourses surrounding this issue is that there is no room for complexity. You either Believe, and have some sort of shelter under construction for when the sea levels rise, or you Doubt, because you are a pro-business, uneducated, evangelical hillbilly who HATES the environment. There is barely even room for discussion because one side is so hellbent on proving that humans are destroying the earth, and the other side stubbornly refuses to accept scientific evidence (as each side portrays the other).  This is another example of the way in which the construction of two mutually exclusive, extreme viewpoints can entirely crowd people’s consciousness with false dualities, such that any deeper, more profound, and potentially threatening considerations (e.g. the nature of human progress, the effects of capitalism, the social impacts of science, etc.) do not rise to the level of debate – and hence, awareness.

Sunday, April 29, 2012

The Limits of Law and Justice

Although I had no specific intention of commenting on the Trayvon Martin case, it just so happened that I was formulating my plan for a series on law around the same time that the story broke. Thus, it was hard for me not to think about the situation in terms of my theoretical analysis of law, and conversely, to outline my analysis of law without thinking about the implications of that case. In particular, some of the discourses surrounding the event of Trayvon’s murder highlight the nature of our sacred ideal of “justice.”

To start with this conception with justice. In a published conversation between Noam Chomsky and Michele Foucault, Foucault challenges our unquestioned embrace of “justice.” This is part of his larger critique of positively defined resistance – that is, in terms of particular ideas or ideals to work toward - which he eschews in favor of an oppositionally defined resistance, based on a full understanding and destruction of all that one is against. The problem, as Foucault sees it, is that our thought is so fundamentally shaped by the social structures in which we live that any ideas about what is possible and all the ideals that we uphold are pervaded by the very structures that we are trying to overthrow.  Positively defined resistance always leads, ultimately, to the reproduction of that system.

Enter justice. It sounds nice. Who could have a problem with justice? Most movements for change are founded upon some idea of justice, after all. Yet, Foucault insists that even justice is a bourgeois concept (much in the same way that I have also critiqued concepts of democracy and liberty). The modern concept of justice is, of course, a product of the modern world. It depends on concepts of rights and individual culpability, and is entwined with modern institutions, such as law.

Take the case of Trayvon Martin. Now, it goes without saying that the events leading up to and following his murder demonstrate the fundamental inequalities pervading the American social system – in particular, the vulnerability of young, African-American males to forces of systemic violence. It also serves as a good contrast to the case of Troy Davis, in which the murder of a white police officer yielded consequences on the other extreme. Regarding Trayvon, though, it is important to remember that the very fact of racism inherent to the system makes specific acts of violence more desirable or easy to perpetrate - even if the driving intention in any particular case is not race-based per se -as one will not expect the same sort of consequences to follow from one’s actions. In other words, the fact that law enforcement (and other) officials are able to use undue force (assuming, of course, that any force is ever “due”) on African-American males on a regular basis without suffering any consequences makes it all the more likely that one will resort to force in an encounter with an African-American male in the future. And that is regardless of one’s race (to that end, George Zimmerman’s racial/ethnic background is completely irrelevant). The system makes it easy, so it will happen. I would never argue that this is not a problem. The criminal justice system, like all American institutions, is severely inequitable.

Now, then, would "equality" entail that George Zimmerman be punished just as severely as Troy Davis... or at the very least be prosecuted? Certainly this seems just, and such a scenario is exactly what some groups have called for. The New Black Panthers put a bounty on George Zimmerman, and cheers went up when he was finally arrested.

Prosecuting George Zimmerman may very well satisfy our sense of justice. But that is a problem, in fact another victory for the system. Institutions of law, the legitimacy of violence and coercion – these things are part of the fabric of our social system. They allow it to function. These things must be dismantled if we are to truly transform our society. Sure, we could attempt to more fairly mete out arrests and punishments, but that would not change the fact that the system in which criminal justice is embedded still functions to maintain classes of people who do not control their own destinies.

By pinning our hopes and sense of “victory” on legal outcomes (particularly those involving the criminal justice system), we are sanctioning the system that oppresses us. We are saying that, yes, we approve of the social order, and sure, certain forms of violence (wielded by the dominant classes to the detriment of vulnerable populations) are a-okay!

Friday, April 27, 2012

Book Review: Between Equal Rights

In this work, China Mieville attempts to develop a Marxist theorization of international law. Ultimately he draws on the work of Soviet legal scholar Pashukanis and defines a “legal form” as essentially the framework inhering between two formally equal owners of commodities, with different means of force to protect or infringe rights of property. International law, then, is merely a case of the legal form in which the juridically equal subjects are sovereign states (their property being their territory).

Some of my previous critiques of Marxist theorizations of law apply to Mieville’s work: 1) He ignores the specificity of modern legal discourse and practices (notions of “rights,” the status of written records, the treatment of evidence, etc. – these are not, I would argue, superfluous, as they are important criteria on which determinations of “legality” are based); 2) Although he is fond of very judicious use of the word “dialectic,” he does not seem to understand the real meaning of this term, such that 3) He cannot adequately explain the independence of law (how its practices are employed by a large variety of people who hold its inherent validity above personal interests) and how law itself may impact political-economic conditions; and 4) He treats sovereign states as coherent entities.

The biggest weakness of Mieville’s analysis, however, is his conceptualization of the “international” realm. Scholars such as James Ferguson and Akhil Gupta (see 2005 article: “Spatializing States: Toward an Ethnography of Neoliberal Governmentality,” in Anthropologies of Modernity: Foucault, Governmentality, and Life Politics) have argued that different orders of geography should not be treated as sub- or supraordinate. It is not a case of nesting Russian dolls. The nation-state is not “above” regional interests, and transnational organizations are not “above” sovereign states. Rather, a type of lateral reasoning must be employed, in which actors of supposedly different scale are treated as different agents interacting within the same plan of action. For example, if one looks at a vote over a controversial issue taking place in a transnational organization, one might see a variety of different actors involved: corporations, acting either individually or as an industry, voting representatives who may be tied to state bureaucrats and/or local elites, and organized interest groups, with or without financial resources. A transnational organization is nothing more than an additional place where people can interact with one another. The idea of certain organizations existing on a higher level than others is a image cultivated by these very organizations as a ploy to "secure their legitimacy, to naturalize their authority, and to represent themselves as superior to, and encompassing of, other institutions and centers of power" (Ferguson and Gupta, 2005, pg. 105-106).

Now, I would agree with Mieville that violence is inherent to law. But I also think it matters what kind of violence. Specifically, law is inextricably tied to the notion of “legitimate” violence. Law is the foundation of the legitimacy of violence. This is another place where I part ways with Mieville, when he insists that, whatever a state is able to accomplish via its means of violence, is law; in fact, the reason why states may be seen to violate international law is not purely a matter of interpretation. Forces like the UN “peacekeeping” troops (which may be comprised of armies of individual nation-states) are imbued with legitimacy, providing they stick to certain guidelines (following UN votes, etc.). State violence is legitimate within its own borders (and also following certain legal guidelines), but generally is not considered legitimate when it interferes with another state’s sovereignty. It is for this reason that states may be seen to violate international law.

Now, returning to the concept of the state itself. Is, as Mieville claims, a sovereign state even necessary for the existence of international law? I would argue that any entity (really existing or ideologically constructed) that can legitimize violence is sufficient for the existence of law in general: that may be (and usually is) a state, but it may not be. Contrary to Mieville, states are not real, bounded entities; they are not parties or subjects. The idea of “the state” is part of the ideological construction of the legitimacy of violence in the modern era, and that is why it serves the purposes of law so well. However, since an organization like the UN is also capable of bestowing legitimacy on violence, regardless of how frequently it employs that violence or whether or not it is effective, its role should not be so readily dismissed.

Hence, I would distinguish international law from domestic law only in that the executor of “legitimate” violence is different in either case. Of course, the discourses and types of disputes involved may also be differently focused in each case, but any actor that may be a subject of international law may also be a subject of domestic law, and there is no fundamental difference between the two.

The "problem" of international law really is not a problem at all.

Thursday, April 26, 2012

The Biopolitical Ramifications of Law

As I indicated at the end of my last post, I have yet to address the problem of what differentiates law from other modern social institutions. All modern institutions employ a complex of ideologies that include positivism, social contract ideology and the ideology of progress. All are bureaucratically organized and proliferate written records. All, in some way or another, operate according to a governmental-technocratic logic. What, then, makes law “law”?

I would say that, in this regard, the primary characteristic of law is its access to the means of “legitimate” state violence. What differentiates law from, say, the institutional domain of public health is that legal institutions can actually force payments, define citizenship, imprison, and in some cases, sentence to death. And to the extent that other institutions can do any of those things, they are already entwined with legal processes (e.g. the IRS). If modern social formations may be viewed as a network of overlapping and interacting institutional domains, then law is the nexus between these domains and the means of violence and coercion (the police, the prison system, etc.). This gives law the dual property of being governmental (bureaucratic/ideological) as well as coercive.

In the scheme that distinguishes sovereignty (as a primarily negative, destructive force) and government (as a positive, productive form of power), law is where the two meet. For this reason, law should be an extremely important topic for critical analysis, as it could potentially illuminate the relationship among different forms of power in the modern world. Yet, sadly, I believe the sort of analysis that is needed is sorely lacking. Foucault lent his deconstructive lens to this field, yet was unable to account adequately for the coercive power of sovereignty. Many Marxists, on the other hand, focus too exclusively on coercion, blinding themselves to the importance of governmentality. Giorgio Agamben made some attempt to bring the two together, with his elaboration of the concept of biopower. Yet, in the end, his arguments are more tautological than historical. In some cases they seem to be mere contorted regurgitations of Foucault.

The real question is, how do the utility of violence/coercion and the desire for progress/productivity intersect? Once again, capitalism may provide a theoretical underpinning. Productivity, under capitalism, depends on exploitation (a form of coercion). At the same time, it relies on human labor power and creativity (technological innovation). Thus, one of the fundamental contradictions of capitalism comes to play in (though, does not reductively give rise to) this tension: the tendency to objectify and restrain human beings in order to exploit their capabilities versus the tendency to look for economic advancement and technological progress in a healthy, skilled workforce by promoting those capabilities.

One lesson that law should teach us is that the “legitimacy” of violence requires a strong ideological foundation, which the ideologies of progress and social contract, and the positivistic rationality in which it is embedded, provides. The legitimacy of violence, and hence sovereignty, was erected on an entirely different ideological plane prior to the modern era (for instance, with recourse to the divine). Thus, one cannot say that sovereignty is merely historically prior to governmentality (as Foucault does), that governmentality was sort of “added on” and has become more important. Both, as they exist in the modern world, are fully modern, emerged together, and are interdependent.

Likewise, it is not the case, as Agamben suggests, that life itself (zoe) has come to be a political concern more than in the past. The meaning of life itself is completely different in the modern era. Life is the basis of profit, the vehicle of a consciousness that can create technology and cultural productions, the interchangeable units that fill bureaucratic roles, a thing that is sacred above everything else and yet may be sacrificed for the common good (be that the “spread of democracy” or science or medical progress) – in other words, another subject of cost-benefit analysis. Life is, above all, both the means of progress and the intended end result – the sort of circular reasoning that justifies the entire ideology.

In this way, it may be said that sovereignty and governmental in the modern era are mutually constituting (though this relationship needs to be fleshed out more fully).  Government provides the ideological rationale that legitimizes violence, while sovereignty gives governmental projects some teeth.  Both simultaneously serve their own, independent ends:  one restrictive and self-serving, the other positive and life-affirming.  But it is law that holds them in relation to each another.

Finally, the discourses of law and its coercive resources are used to define who may be involved in governmental and economic projects, and in what ways. That is not to say that reformist ventures are confined to target people with full citizenship status and rights. To the contrary, people who are attributed the status of "criminal" or "insane," or other types of social deviance, are functionally not full citizens (not enjoying all the rights of citizenship) yet are the subjects of much institutional reformist activity. Likewise, services are often extended to people of different types of immigrant and refugee status, but frequently the status of their citizenship itself is the basis of the governmental "care" that they receive. On the other hand, people who cannot acquire full citizenship status all too often "slip through the cracks" and become invisible to the governmental-technocratic systems that seek to cultivate health and happiness. Just as, ideologically, the ability to exercise rights depends on one's citizenship status in relation to particular nation states, so does one's integration into the governmental matrix follow from this legally defined status. Of course, at the extreme, coercive forces sanctioned by law may be used to deport or detain people on the basis of their citizenship status.

It is clear, then, that law is more than ideology, more than a set of rules, and more than a basic form inhering in commodity exchange relationships. It is a type of practice (or rather, set of practices, including both violence and rational administration) by which modern society is organized as well as the rational/philosophical justification for those practices.

Tuesday, April 24, 2012

The Technocratic Foundation of Law

Although ideology is not purely ideational and discourses are material social facts, law is more than a codification of social contract ideology. No theorization of law would be complete without an account of the institutional arrangements, artifacts, and practices associated with its material existence. Yet, for all the Marxist analyses of contracts and law that I have read, I have not encountered one that thoroughly interrogates the significance of the written record, or juries, or the presentation of evidence. 

The practices of modern legal institutions are based on the same complex of positivist/enlightenment thought (including the ideology of progress) that pervade other modern social institutions. In fact, the barrier between law and various human and natural sciences is quite permeable. In many ways it could be said that law acts as an arm of science. Not only are scientific procedures used to elaborate and clarify evidence (DNA testing, ballistic analysis, drug screening, etc.), but the courtroom is an important arena in which ideas about the limitations of human knowledge and perception, the validity of various forms of evidence, and the intersections of social deviance and free will are worked out, refined, and transformed.

More than this, one must look at the ultimate goals toward which these legal practices are oriented. It is not merely the enforcement of contracts and the preservation of the division of labor. The governmental impulse to reform and rationalize all aspects of human life is absent nowhere, least of all here. Law is used as an instrument of Benthamite cost-benefit analsyis. Individual pleasures and collective goods are weighed against personal limitations and injuries (e.g., the detention of a single person for the good of the community).

According to the ideology of progress, continually improved legal procedures are a means by which society can be ordered in the most beneficial and efficient way possible. For instance, an entire spate of laws relating to marriage and childcare seek to impose normative representations of family life, or acceptable variations thereof. Psychological categories of sanity and criminality are used to determine who may exercise the full rights of citizenship, and correspondingly be held responsible for breaches of law (in other words, what “deviant” behaviors will prevent one from fully participating in the social contract). Matters of individual consciousness and belief are carefully, almost mathematically, weighed against the imperatives of social welfare (the need for a proper education, access to healthcare, etc.).  From the point of view of progress, it is the rationality of law, more than anything else, that can perform the cost-benefit analyses (under a guise of neutrality and abstraction) on which governmentality rests. 

Going hand in hand with this liberal, reformist impulse is a tendency to objectify and discretely measure ambiguous concepts like pleasure and pain. Mental anguish and psychological disturbances may be awarded monetary compensation. Pleasure, belief, and “lifestyle” are components of cost-benefit analysis. (Note, for example, that Heather Mills was awarded so much money in her divorce from Paul McCartney, simply because she was accustomed to a certain lifestyle, and it would diminish her pleasure and personal fulfillment if she were not able to maintain that lifestyle.) Of course, absent from this calculus are any notions of the potential value of suffering or pitfalls of pleasure, both of which are important in a variety of pre-modern value systems. **I don’t know that Marx would view this as anything more than the natural course of evolution, owing to the fact that his own thought was often pervaded by the ideology of progress. It is interesting, in this regard, to draw upon more “deconstructivist” scholars such as Talal Asad for detailed analysis of these changes.

Finally, the sanctity of the written word in legal proceedings, while undoubtedly following from positivist ideology, also firmly establishes legal institutions as bureaucratic networks, dependent as they are on records. The use of written documents in court, for example, captures life in the “outside world,” as well as real-time events in the courtroom, and brings them into the web of institutional objects, which can be circulated, copied, embedded in other documents, and appropriated for other purposes (like the common practice of referring to prior cases).

So, then, what makes legal institutions different from other bureaucracies? What distinguishes the law from government agencies of various sorts? The answer to these questions will be the subject of my next post.

Sunday, April 22, 2012

The Ideological Foundation of Law

Modern legal discourse and social contract ideology emerged together and are mutually constituting. Social contract ideology posits that members of society are bound together by a “free” contract, the enforcement of which is generally entrusted to the state. According to social contract ideology, however, the state is nothing more than an instrument of the people, who give their consent to allow certain representatives to manage the terms of the contract on everyone’s behalf. What this means, in practice, is that the social contract can only be enforced and protected via these authorized representatives (in other words, the state).  I have emphasized this point before, and it will become important later.  This is also the key to understanding the concept of "rights."  Rights are certain things that are guaranteed to the individual by the state, generally involving protections of property, individual subjectivity (including consciousness, identity, pleasure, and self-determination), and life itself.  Without the state, there are no rights.

Of course, as I have already argued, social contract ideology conceals the non-consensual relations that lie at the heart of modern social formations, and in many ways legitimates exploitation by construing it ideologically as “free contract” (such is the case with wage labor). In fact, the modern contract rests on a theory of personhood in which freedom and formal equality are predicated on ownership of property. Coincident with this view is an elaboration of subjectivity which brings it into realm of "own-able" objects; hence freedom of speech, religion, etc. In this scheme, "equality" and "freedom" mean that one's rights derive (ostensibly) not from social relations and status hierarchies but from an inviolable relation between person and thing. Whatever one owns (however that ownership is reckoned) one is free to dispose of as one wishes. Yet, my parenthetical remark is not entirely parenthetical, as social contract ideology conveniently elides (thereby sanctions) the history and extant structure of property relations.

This is the "loophole" that allows for exploitation. Some people do not have any chance of owning any means of production, and must allow themselves to be exploited via wage labor. In fact, capitalism could not function if everyone owned some (viable) means of production. This fact is obscured by social contract ideology, with its "equality" and "freedom."  In other words, in orienting societal values solely toward the freedoms and privileges inhering in property ownership, questions concerning the distribution of wealth and relations of production become counterposed to the hegemonic sense of moral order, making them all the more difficult to address. Furthermore, it is fitting that this phenomenon has taken root with the rise of global capitalism, a system in which relations between people are represented as relations between things, and in which non-human ("rational") accounts of the social order are privileged.

Monday, April 16, 2012

Marxist Analyses of Law

The simplest definitions of law tend to frame it as a set of rules or norms. There is disagreement about whether or not these rules must be enforced (often by a sovereign) or merely assented to. Marxist interpretations of law tend toward the former (coercion) and often explain legal institutions as an effect or aspect of class struggle. For example, law is necessary to uphold the division of labor, or it is a component of exchange relationships between formally equal owners of property.

Yet, there are many characteristics of law that all of these renderings disregard. It is true that all societies must be governed by rules and norms in order to function, and these may be enforced via individual or collective action. The “rule/norm” definition cannot account for the specificity of modern legal institutions. Similarly, in any society exchange plays a pivotal role in structuring social relations and supporting the division of labor. To simply say that law derives from exchange once again precludes an understanding of distinctly modern social formations. Finally, it is analytically crude to argue that law arises from class struggle, without attempting to describe and explain the manifold ways in which legal institutions have taken on a life of their own, in dialectical relation to political-economic realities.

It is precisely the concept of the dialectic that is absent from many Marxist analyses, though some may pay it lip service. There is a tendency among Marxists to reduce ideological, discursive, and bureaucratic realities to the status of handmaidens of the primary mode of production. However, Marx was quite clear in his discussion of the dialectic that the former elements achieve a certain degree of independence from the material economic order (the “base”), often following their own logics of development and commanding just as much influence over material production as the reverse. What this means is that ideas, discourses, even complex social institutions, may exist in tension with economic necessities. Granted, dominant economic interests will attempt to strategically deploy ideas and discourses, and shape institutions, in ways that are personally beneficial. However, ideas and discourses are appropriated and employed toward a diversity of ends as they circulate, some of which may challenge the social order; and positions within institutions are occupied by a variety of people with different outlooks, abilities, habits, and aspirations.

Hence, it is entirely too simplistic to conclude that law is an effect of class struggle. Law is a way of thinking, talking, and framing events that can be used by anyone (lawyers, judges, politicians, citizens, etc.) for almost any purpose. Many people who employ legal discourses hold an earnest belief in its inherent validity (a “natural law” interpretation). Thus, certain interpretations of the law may influence decision-making even when it runs counter to personal goals. Law cannot be reduced to politics or individual will back by force. It is true that the same legal discourses may be used by people with entirely different political-economic perspectives, and to support widely divergent social aims. But one must not stop there.

Law is not an empty container which can be filled with any kind of “content” whatsoever. Analyses that privilege legal “forms” ignore the significance of particular concepts and discursive themes, such as “human rights,” “equality,” “liberty” and “cruelty.” A critical examination of the modern phenomenon of “law” must begin here. This investigation must include some attention to the centrality of evidence, documentation, and intentionality, as well as the ways in which all of these are tied to a positivist discourse that dominates other realms of modern society.

But one must go further still. It is often noted in passing that the enforcement of law necessitates a sovereign state. This raises a potentially interesting problem (always ignored) as the state is not a concrete, unified object. What elements of our idea of the “state” are actually necessary for the functioning of law? Definitions of the state that focus on territory, in particular, are not able to address the fundamental questions of citizenship that underlie the concept of “rights.”

Finally, there is the question of violence. I agree with those who insist that violence is a necessary and inherent component of law. But what kind of violence, and under what circumstances?

I hope to at least address all of these questions in my next series of posts.