July 27, 2005
So You Want to Live in a Free Society (4): Personal Independence and the Rule of Law
Anderson on Political Economy, Elizabeth Anderson: July 27, 2005
In this series of posts, I've been developing a view of the requirements of a free society. I've introduced two notions of freedom--as opportunity, and as personal independence or non-domination. Last time I argued that freedom-as-opportunity is needed to justify private property, and is an indispensable idea for assessing social arrangements from the perspective of freedom. In this post I'll argue that freedom-as-personal independence is also a necessary part of a free society. Recall that to be free in this sense is to be in a state in which one "is not subject to coercion by the arbitrary will of another" (F. A. Hayek, The Constitution of Liberty, p. 11). Despite my fealty to Hayek's own formulation (which in fact follows a very long tradition), some might suspect that I have tried to stack the deck with some left-wing, radical notion of freedom that capitalist freedom-lovers can do without. Once again, the suspicion is right that this notion of freedom-as-personal-independence has some political implications that laissez-faire theorists will not like, as I plan to show in later posts. But once again, freedom-lovers can't do without this notion, because it's necessary for the rule of law, without which capitalism cannot flourish.
Imagine a state in which people have wide opportunities, but enjoy them only at the pleasure of a dictator. The dictator is easy-going and mostly lets his subjects do as they please. But every so often he gets cranky and orders the arrest of a subject who has displeased him, or he gets greedy and orders the confiscation of a subject's possessions. He doesn't have to prove that his subjects broke any laws that could warrant such punishment. He can throw people in jail or take their possessions without a trial. He can do this to any of his subjects at his whim.
What does this say about the subjects who have not been arrested or had their possessions seized? Are they free, or not? In the opportunity sense of freedom, they are still free. But their opportunities are implicitly conditioned on the permission of the dictator. They enjoy them as a mere grant of privilege from him, not as a right against him. This has consequences beyond the relative insecurity of their freedom. It also means that they had better toady up to the dictator, lest he take away their opportunities. People who must grovel in order to retain their opportunities are not fully free. They lack freedom in the sense of personal independence.
There is a way to secure people's personal independence from state agents. It's called the rule of law. In a state governed by the rule of law, the agents of the state can act only pursuant to prior, duly enacted, publicized laws of general application specifying what may be done to whom and for what reasons. People's liberties can only be taken away by due process of law. The point of the rule of law is to limit the discretionary power of state agents within tight bounds. When acting for the state, they cannot do as they please, but only as publicized, general, duly enacted laws authorize them to act.
Without the rule of law, private property rights, and hence capitalism, cannot flourish. We see this point being made in China today, where oil prospectors have filed suit against the state for seizing their wells and paying them a small fraction of what they are worth. Here's the background: In 1994, China, eager to develop its own energy resources, wisely decided to permit private oil prospecting. Its bet on private enterprise paid off hugely when thousands of people of very modest means signed development contracts with the Oil Ministry, scrimped together their savings along with that of their family, friends, and neighbors, and drilled over 2,000 productive wells in Shaanxi Province. State officials, once they saw how profitable these investments were, seized the wells for the government, paying investors a fraction of their investment--and more importantly, a fraction of the market value of the wells. Given the quasi-feudal mode of state governance in China, where local officials treat their governmental domains as integrated with their private property, and tax the locals to generate revenue for their firms, it is reasonable to assume that the officials plan to skim the profits of the oil wells for themselves. "Let the people take the risks; we'll take the profits" is the best translation of the explanation by the mayor of one Shaanxi town, who called the experiment of allowing private prospecting "a beautiful mistake." Beautiful for him, a mistake for the poor prospectors who did all the work, relying on the state's lying promise to recognize their claim to property. The people are fighting back with an unprecedented class action suit against the government, demanding either full restitution of their wells or better compensation for their investment.
What's emerging is a major test of the rule of law and hence the future of capitalism in China. So far, the rule of arbitrary state will appears to be winning over the rule of law. The lead lawyer for the prospectors has been arrested, some of the plaintiffs have been arrested, others are in hiding, and the state has banned the plaintiffs' lawyers from talking to the press. The choice is stark: shall it be klepto-capitalism for the ruling class, feudalism for everyone else, or shall all be free to become capitalists, with rights to private property? The irony is heavy: can today's Communist Party/company town ruler-owners point to anything that distinguishes them, morally, from the oppressive landlords the original Communists fought to overthrow? More and more frequently, rioting peasants and villagers don't see much of a difference. Their vision is 20/20.
No doubt, the readers of this blog will join me in expressing outrage at China's actions. But we may differ in our grounds. For some, the outrage consists in its violation of a sacred and inviolable natural right to private property. For me, the outrage consists in exploitative lies, corruption, and gross violations of the rule of law. The two concerns converge in a common condemnation of the state's oppression of its people in this case. But they diverge in other cases, notably concerning the scope of the state's power of eminent domain. More on that in my next post.
July 19, 2005
J. K. Rowling's modern world
Mika LaVaque-Manty: July 19, 2005
[July 22 addendum. By reader request, I include this SPOILER DISCLAIMER: This post reveals nothing about the plot of Harry Potter and the Half-Blood Prince, but the commentary that follows on L2R Comments does.]
I take a break from summer break to make sure L2R has a seat on the fluffy cultural bandwagon of Harry Potter commentary. (Besides, Don H. is on vacation, and it takes a small village of bloggers to make up for his productivity.)
Lately, it has become commonplace to argue that Max Weber's "secularization thesis" has turned out false. Weber, the early 20th-century German sociologist, suggested that modern world was becoming increasingly secular. The development of science, in particular, had "disenchanted" the world, he said. But in 2005 it does indeed seem things didn't quite go like that: whether the world ever got particularly secular, it would be hard to argue right now that religions and other kinds of spirituality are fast on their way out.
That's why it's interesting -- and intellectually refreshing -- to run into a glaring exception that also manages to be hugely popular. The world J. K. Rowling has created in her Harry Potter books is, in a Weberian sense, truly secular and modern.
Now, of course, there are two important ways in which Rowling's world is very enchanted: it's a world full of magic -- Harry is a budding wizard attending the Hogwarts School of Witchcraft and Wizardry, after all -- and it has enchanted millions of readers over the last several years. But there are lots of important ways in which it's secular.
Consider: Religion plays no role in the books. There are no churches, no other religious institutions, nobody prays or meditates, and even funerals are non-religious affairs. This is a striking contrast to all the other familiar trappings we find in the books: there's commerce and bureucracy, there's crime and punishment, sports, arts, media; there's teenage romance and mischieft, there's drinking and partying, petty jealousies and worldwide crises.
Further, the magic in the books have their, well, rational logic. You have to study them, like science, and while Rowling mainly spares us the details (for which I'm eternally grateful, though I'm sure there are some fans busy trying to cook up Polyjuice Potion), there are natural laws of sort underlying them. They aren't our natural laws, but they are like our natural laws: thoroughly causal. The one apparently non-causal area of magic -- "Divination" -- is more or less explicitly pooh-poohed by any self-respecting wizard. Or, more precisely, divination is not dismissed, but smart folks understand its efficacy makes sense sociologically: it can work only if people believe it works.
So what? Does this mean that those folks who worried a few years back (maybe still) about Rowling being in league with Satan were right? Or does it mean that Rowling has an atheist agenda, which in some views is just another way of being in league with Satan? No, I would say. I think Rowling's "modernity" matters, but lest I be misunderstood, I'll first spell out what I don't mean.
I don't think Rowling has an atheist or anti-religious agenda. I don't know about her religious views, and I'm not enough of a groupie to care to find out. I don't really think she has any explicit agenda like that, which may well explain her success and also why the books are, at least in my view, increasingly good. I'm not a fan of literature with tendentious agendas, especially when it's aimed at children and young adults (see Jim Oakes's recent related post). That doesn't mean that literature may not take positions on issues: for example, I like Philip Pullman's more explicitly atheist children's books, but I like them in part because Pullman never turns his stuff into a dogmatic screed and, more importantly, never tries to shut down thinking by making things crassly simplistic.
But I don't think Rowling is -- or tries to be -- political in the way Pullman is: I don't read the absense of religion in her books as an attempt to raise questions about religion. What the absence does allow is for readers to think about gnarly moral questions without any easy answers.
I'm not saying religion and morality aren't compatible, although I personally happen to like Immanuel Kant's view on the matter. Kant -- himself probably a non-believer, but also a defender of religious faith and even occasionally of dogma -- thought it thoroughly problematic to base morality on religious faith: action based on the fear of God or on the hope of Heaven could not begin to count as moral action. What I am saying is that since Rowling's characters -- and particularly her protagonist Harry -- can't turn to already-existing answers on moral questions, they have to sort them out themselves. Their world has rules and it has its version of science, i.e., magic. Sure, some of the magic has been categorized as "Dark Arts," meaning it's supposedly in the service of evil, and it can be used to hurt others. But like the more mundane rules which Rowling's teenage characters have teenagers' universally good sense to question, the categorization of things into "Dark Arts" is less obvious than it first seems. On the whole, the category may make sense, but even then you'll need some magic-independent moral argument to say why something is "Dark." Ultimately, magic is like the science Weber wrote about: it's value-free, and it doesn't tell us "What should we do? How should we live?"
(OK, OK: there are also easy answers in the Harry Potter books. Bullies are bad, spoiled bullies
particularly, and venality of any kind is likely to make others think
ill of you.)
Some readers may find that very absence of spiritual solace and religious moral dicta in Rowling's world bewildering and so exactly the source of exciting unease adventure and horror fiction rely on. "Whew," they say on finishing a Harry Potter book, "Thank God [sic] I've got this source of support poor Harry doesn't." That'd be just fine. But I like the Harry Potter books exactly because they are -- in addition to the fun and adventure and summer escapism -- deeply moral books without easy answers to some the toughest moral problems people confront. In that way, they remind us that however much Weber's secularization thesis may have been wrong on the sociological particulars, the philosophical problem of modernity is that it's often bewilderlingly hard to figure out what we should do and how we should live and that, on the whole, it'd be good to get practice in answering those questions by oneself.
July 05, 2005
History Lessons: In Philadelphia
James Oakes: July 5, 2005
What do Lynne Cheney and Cecilia Cannon have in common? I assume everybody knows who Lynne Cheney is, but who’s Cecilia Cannon? She’s an assistant superintendent of the Philadelphia school system, and she was recently quoted in praise of the newly imposed requirement that all high school students in the City of Brotherly Love be required to study African and African American history in order to graduate.
So what do Cheney and Cannon have in common, other than their shared interest in education? Both believe that the reason for studying history is to make students feel good about themselves.
Cheney hit the big time about a decade ago when she launched a pre-emptive strike on the National History Standards that she herself had commissioned as head of the NEH. According to the Los Angeles Times, Mrs. Cheney argued "that the standards were not positive enough about America's achievements and paid too little attention to figures such as Gen. Robert E. Lee, Paul Revere and Thomas Edison. At one point in the initial controversy, Cheney denounced the standards as 'politicized history.' " There were not enough references to the Constitution and too many references to the Ku Klux Klan. Not enough George Washington and too much Harriet Tubman. All in all, Cheney concluded, "We are a better people than the National History Standards indicate, and our children deserve to know it." (This was the height of sophistication beside Rush Limbaugh’s denunciation of the standards: "History is real simple. You know what history is? It's what happened.")
I don’t know if Mrs. Cheney has put up her two-cents worth about the new Philadelphia requirement, but it seems tailor-made to arouse her wrath. It is based on a spurious body of pseudo-knowledge known as "Afrocentrism," wherein the great achievements of western civilization–philosophy, literature, mathematics, and science–are said to have had their origins in Africa, specifically in the ancient black civilization of Kemet, known outside Afrocentric circles as "Egypt." Philadelphia’s students will learn, among other things, that African mariners discovered America a century before Christopher Columbus. They will be taught that as many as 50 million Africans were shipped to the Americas during the Atlantic slave trade. (Correct answer: about twelve million. Isn’t that horrible enough?) And as if to confirm Cheney’s worst nightmare, the great achievements of Africa will be emphasized whereas the United States will appear as the repository of virtually undiluted evil. Scholars more proficient than I have taken their swords to the idiocies of Afrocentrism. See in particular Clarence Walker’s lively but highly informed book, We Can’t Go Home Again: An Argument Against Afro-Centrism.
I’m fascinated by a somewhat different matter: the peculiar convergence of Lynne Cheney and the Philadelphia School Reform Commission. Lynne Cheney wants our students to focus on the great heroes and grand achievements of the United States. Our children "deserve to know" about our greatness as a people. But that’s exactly what Cecilia Cannon wants for Philadelphia’s students. "We have the opportunity ... to do something under our watch that is really going to do right by our students," Cannon declared, something that will have black students finish their courses saying to themselves, "We've come from some pretty great places."
Before I go any further, let me splash my credentials about, if only as a defensive maneuver. My field of research is American slavery; I teach comparative slavery as well as African American history; I’’ve supervised a number of African history Ph.D. dissertations. My point is not to impress everyone with my bona fides; it is only to say that you won’t find me raising any questions about the intellectual legitimacy of either African or African American history. I take these subjects very seriously, and that’s in part why I’m troubled.
For one thing, it turns out that my credentials––such as they are––render me uniquely unfit to comment on the Philadelphia proposal, one of whose primary goals is to play down the significance of slavery. Sandra Dungee Glenn, the school reform commission member who fought most for this proposal, is quoted to this effect in the New York Times. "People’’s views and understanding of who we are focus on us as descendants of slaves," Glenn said. "It begins and ends there, giving us inferior status." This is another standard Afrocentric turn: not much on American slavery; not a word about slavery in Africa. By studying, teaching, and writing about slavery, I turn out to be part of the problem Philadelphia is trying to correct.
So Glenn, too, agrees with Lynne Cheney: excessive attention to subjects like slavery makes a bad impression. For Cheney students end up feeling bad about America; for Glenn black students end up feeling bad about themselves. This is all too negative. James E. Nevels, Chair School Reform Commission hopes that the new requirement "will reflect the richness and culture that all Americans, of every hue and nationality, have brought to our collective table." The new courses will complement the existing American and World history requirements, Nevels says, thus placing the entire district’’s history curriculum "within an inclusive multicultural framework."
I don’t know which is worse, Mr. Nevels’ simple-minded notions about what students are supposed to learn from history courses, or the gibberish that Philadelphia’s students will actually be taught in courses which, by the way, strike this poor soul as the antithesis of multiculturalsim.
It would have been nice if the debate over the Philadelphia proposal had focused on its serious intellectual flaws. But no. The entire debate, for and against, hinges on an entirely different matter: The proponents of the new requirement claim that it will boost the self-esteem of African American students, while the opponents worry that it will diminish the self esteem of whites and ethnic minorities.
I confess that I find this obsession with self esteem nearly as disturbing as the curriculum itself. Once history is enlisted as an agent of psychological well being it ceases to be a serious intellectual enterprise. History–like mathematics or biology--is not supposed to make students feel good––or for that matter, feel bad––about themselves. But that seems to be what the Philadelphia proposal is all about.
I am not a psychologist. I am not qualified to say whether students need to be spoon-fed balderdash so they can feel good about themselves. My own seat-of-the-pants sense is that self esteem has more to do with performing well in demanding courses, whether those course are in Trigonometry or African history. Anyway, is self esteem what we’re aiming for? Haven’t we all read about those studies of gang members who have high self esteem? I was not happy when Lynne Cheney began hectoring me and my guild about teaching American history in a more upbeat fashion. And I’m not happy about having the serious study of African and African American history corrupted for the sake of anybody’s self-esteem.
What might have been a perfectly reasonable proposal to balance a curriculum slanted towards European history turns out to be nothing of the sort. Throughout the debate critics have been complaining about the "Eurocentric" bias of "traditional" high school history. But Philadelphia students now take no European history at all, and what they are about to get sounds more like "anti-European" history than African history. What might have been an innovative introduction to a serious field of historical inquiry turns out to be a curious reversion to the very same "traditional" approach that the proposal’’s defenders disdain. Except that rather than being taught boring facts about the great achievements of great white men and their great civilizations, students will be taught boring pseudo facts about the great achievements of great black men and great black civilizations.
In the end, what’s the difference between history as preached under Lynne Cheney’s American nationalist dispensation and Molefi Asante’s black nationalist dispensation? Both demand the impressment of history into the service of ideology. Confusing history with propaganda, both forsake history as a critical discipline. And both establish a bogus psychological standard for measuring the validity of any particular historical inquiry. If it makes students feel good–about their country or about themselves, it make no difference–it’s doing the job.
More than a century ago good Christians worried that teaching Darwinism would lead students devalue human life and thereby diminish the glory of God. Fortunately we’ve outgrown such notions and nobody these days would seriously propose corrupting the teaching of science by.... Oh, never mind.
what's a poor library to do?
Don Herzog: July 5, 2005
Who knew a little paragraph buried in a bureaucratic document could kick up such a fuss? Page down to F-9 and you'll find this, uncertain syntax and all:
Commissioner Storms led a discussion on the adoption of a policy that Hillsborough County Government abstains from promoting and participating in Gay Pride recognition and events. The Board approved to adopt a policy that Hillsborough County Government abstain from acknowledging, promoting, and participating in Gay Pride recognition and events. The Board approved that the policy would only be able to be overturned by a public hearing and supermajority vote. Renee Lee is responsible for drafting a Board policy for Board review by July 20th.
Why? Because the West Gate regional library put up a display for Gay and Lesbian Pride month: a poster with famous gays and lesbians, and books and pamphlets from the library's collection. A few patrons complained, and the display came down. One pamphlet offered teenagers with "questions about their sexuality" "counseling resources." That concerned Commissioner Storms, and hey presto! a new sweeping policy for Florida's Hillsborough County, which includes Tampa.
Is the policy unconstitutional? Does it violate the first amendment? Centrally of course the constitutional guarantee of free speech protects private citizens from government control. The law on whether it protects one unit of government from another is dicey (but see this). Still, I don't think the commission's action violates the first amendment. Neither does she:
Renee Lee, the Hillsborough County attorney, said it was legal. "If the county doesn't want to spend money promoting gay rights, they can do that," Lee said. "It's not a constitutional breach. This is not a free speech issue."
And the city of Tampa's human rights ordinance (click on chapter 12 here) bars discrimination on the ground of sexual orientation. (The county removed sexual orientation from its ordinance in 1995.) The library gets some of its funding from the city, and a citizen has filed a complaint with the city's Office of Human Rights. But I didn't notice any language in the statute that really applies.
So as far as I can tell, then, there are no constitutional or other legal barriers to the county commission's action. This is a policy dispute, no more — and no less. It belongs in the political arena, not in court. So the commission got quite an earful from the public. Still, they adopted the policy. It's one crummy policy. And I even think we ought to be able to agree on that whether we approve of gay rights or not.
Suppose a library put up a display on the civil rights protests. It might feature Bull ("I want them to see the dogs work") Connor unleashing violence against peaceful black protesters, or hooded Klan members. Indeed, it might even more or less exclusively feature such repugnant displays, just as the Florida Holocaust Museum once ran an exhibit on The Art of Hatred, just as Alabama once displayed a hooded Klan member in its Civic Centre. No matter: ordinarily we'd take such a display as taking sides with the civil rights protesters and against racists, fascists, Klan members, and the like.
If it's okay for a public library to take sides on civil rights, it can't be because nobody disagrees. It's rather that we've decided that their disagreement is beyond the pale. So a respectable thing to say about the Hillsborough county commission's move is that they don't think opposition to gay rights is beyond the pale. That is, the commission needn't themselves be opposed to gay rights. They might think, though, that it's inappropriate for citizens so opposed to be affronted on walking into the public library, where everyone should be welcome.
But mandated silence on the topic seems antithetical to what libraries are about. Libraries are for learning stuff, and displays don't have to take sides. That's why I say proponents and opponents of gay rights alike ought to agree that the county blew it, in a big, bad, awful way. The real divide here is between those fond of vibrant democratic debate and those opposed to it. So I'd let the library mount a display airing all sides of the dispute. Indeed, I'd encourage them to. Precisely because there is ongoing controversy about gay rights, and because we think (don't we?) that both sides have legitimate views, no reasonable observer would take a library exhibit's inclusion of critics of gay rights as silently scornful. The county's measure makes it seem like they think the very topic of gay pride is unspeakable, indecent — something that must remain deeply closeted. That position, and not any measured view on gay marriage or civil unions or antidiscrimination laws, is reprehensible.
The funny thing is that Commissioner Storms claims to have been most concerned by that pamphlet telling teens concerned about their sexuality where they might turn. What that has to do with taking sides on gay pride is beyond me. ("They're recruiting!") Next up, I suppose, a policy that shackles the library here, too:
17-year-old [anxiously]: Um, have you got any information on sexual orientation and identity?
Reference librarian [primly, or maybe glumly]: I am not at liberty to divulge that information.
Or if the commission is really worried about the county government's "acknowledging, promoting, and participating in" controversial causes, maybe they should tell the library to stop buying books on evolutionary biology — and creationism, too. Maybe they should get the existing books off the shelves, too. That's just the beginning, of course, because library shelves stripped of controversial materials are going to be pretty damned empty.
So maybe the respectable position I ascribed to the Hillsborough County commission — that libraries should stay peacefully above the fray — isn't their actual position. Maybe they just plain don't like gays.