(This essay was a final exam paper for a Legislative Practice class with Prof. Paul Campos – “the philosopher” referred to in the essay- at the University of Colorado Law School, written in December, 2008)
“The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.”
-Edward Gibbon, “Decline and Fall of The Roman Empire”
One need not be a solipsist to recognize that he cannot refute the unreality of a law by kicking either it, or its unambiguous and definitive meaning, but neither need one be a Bishop Berkeley to recognize that the reality of law is precisely the fact that we imagine it to have one. We have focused this semester on the elusiveness of the meaning of any given law, and on the various fictions employed to disguise that elusiveness. This, of course, is not a phenomenon particular to law, but rather a basic linguistic (and epistemological) fact: The ambiguity of language (and, more generally, the individuality of perception and cognition) produces a multiplicity of possible interpretations. Any text (or communicative act), especially one that is authored by multiple people through some collective process (such as illustrated by the convoluted politics by which the Civil Rights Act of 1964 was passed), has no single intent or original meaning, nor does it remain tethered to the context of that process when later readers (or audiences) implement it. Even the meaning of a single text by a single individual is not a fixed entity: Is it what the author intended, or what each interpreter understood? Should it be interpreted literally when experience and context suggest that the purpose of the text is better served by filling in the blanks and adapting it to changes in circumstances?
Given the fact that the interpreted law is a chameleon molded by the various attributes of various minds employing various techniques serving various biases and predispositions, it is, arguably, merely a sham, an “opiate of the masses,” which the magistrate finds useful because it legitimates his power and enables him to better herd the beguiled sheep. To serve this function, the people must be duped by the sham, must accept the law –arrived at by all the various modes of legal interpretation employed by its practitioners (“the various modes of worship”)– as an objective reality, so that they will submit to its authority. And the philosopher deconstructs this system of fictions upon fictions, vacillating between an existential crisis and a concern that he may be abrogating his responsibility by destroying the illusion he is paid to maintain and to train others to maintain.
My thesis is that the philosopher need suffer neither affliction. The comedian George Carlin, somewhat paralleling the Gibbon quote above, said, “Some people see a glass that’s half empty, others see a glass that’s half full, but I see a glass that’s twice as big as it needs to be.” In other words, it is what it is. We can measure our social institutional framework, knowing that it is all smoke-and-mirrors, against some unattainable ideal of the just and transparent society, and despair that it has fallen so short (the utopian approach). Or we can measure it against it’s absence, and rejoice that we are, to some limited extent, spared the “short, nasty, and brutish lives” of all other creatures (the Hobbesian approach). Or we can, like the philosopher, strive to understand precisely what it is, to reveal the little man behind the curtain, to peel the onion away and find insight in the void thus revealed, but, while doing so, avoid the philosopher’s crisis by mitigating our angst with a combination of pragmatic utilitarianism and benevolent egalitarianism.
The Great and Powerful Oz, Toto, and the Little Man Behind the Curtain
Our legal system is a dialectic of mythos and logos, a functioning mythology operating according to its own internal logic, but also implicitly challenged by the logic of critical analysis. The mythos is employed to legitimate power, and in doing so, to co-opt logos, to convert (using Max Weber’s terms) “traditional authority” into “rational authority,” and to claim that “charismatic authority” (personal authority subject to personal caprice) has been vanquished from the realm of law. To articulate the Gibbon quote, the Wizard of Oz metaphor, and the dialectic of mythos and logos: The people are awed by the mythos (“The Great and Powerful Oz”), while the philosopher (Toto) tugs at the curtain hiding the magistrate employing his machinations (the little man pulling the levers). The magistrate, wittingly or unwittingly, uses mythos (the mechanisms of which are hidden behind a curtain of logos) to beguile the people, while the philosopher uses logos to pull at that curtain and reveal what’s behind it, creating a dialectic between critical examination and uncritical legitimation.
The mythos is that we are “ruled by laws rather than by men.” The curtain of logos that hides the magistrate’s subjectivity is comprised of various theories and techniques of legal interpretation (briefly summarized below). The people uncritically accept these theories and techniques as true and legitimate, the esoteric tools of legal wizardry. The philosopher rejects them all as the sophistry of actors who either accept the play they are in as reality, or pretend that they do. And the magistrate is untroubled by the question as long as order is maintained, and the status quo unthreatened.
The Dead Hand of the Past, the Capricious Hand of the Present, or the Mindless Alternative?
The pleats of the curtain of co-opted logos hiding the little man and his levers are intricate indeed, involving choices along the two primary dimensions of past (when legislated) to present (when interpreted), and narrow (literal) to broad (interpolative). The large folds are defined by three theoretical approaches: 1) intentionalism, which purports to discern and apply the original intent of a statute’s authors; 2) purposivism, which purports to discern and apply the statute’s purpose; and 3) textualism, which purports to discern and apply the statute’s “plain meaning.” Lodged within and draped across these broad theoretical approaches are both specific applications, such as legal process theory and cost-benefit calculations, and the canons of statutory interpretation, falling into three categories: 1) textual canons, 2) substantive canons, and 3) reference canons. There are folds within these folds, of course, linguistic rules, guidelines as to which statutes to interpret how broadly or narrowly, when and how to go beyond the text to “discover” its meaning. But the essence of the matter is that laws are, by the nature of texts rather than by choice, intersubjectively produced, that the interpretive techniques which contribute to their production do not discover something objectively in existence, but rather mold it through the act of delivery, each midwife attempting to finalize the product, but its finalization, to the extent that such exists, being achieved by the subjectivity of an institutionally powerful individual channeled through the artifice of these interpretive techniques.
The inevitability of interpretation is illustrated by Rex v. Liggets-Findley Drug Stores, Ltd., (1919), in which a municipal ordinance required that drug stores “be closed…at 10 p.m.” every day. A narrow literal reading of the ordinance would imply that the drug stores could close from 10:00 p.m to 10:01 p.m., and then reopen without violating the ordinance. The Canadian judge who wrote the decision held that “we should take the words to mean what they would quite clearly mean to the ordinary person,” that the stores should remain closed for the rest of the day (but could they then reopen at midnight?).
In Rector, Holy Trinity Church v. United States (1892), Justice Brewer employs a “funnel of abstractions” to argue that an “accurate” interpretation of a protectionist statute barring employers from paying for the passage of imported employees should not be read to bar the church from paying for the passage of an English minister: From the least abstract (the “common meaning” of the word “toiler”), up through the specific intent of the statute as applied to this case, through the general purpose of the statute, through the social policy it serves, and, at the highest level of abstraction, to the greater social good intended. Even had the argument been strained at some or most of these levels, the others could have been used to come to any preferred conclusion.
Steven Smith, in “Law Without Mind” (88 Mich. L. Rev. 1989), frames the conundrum this way: According to current legal theory, we have essentially three choices: 1) “originalism,” whose primary defect (setting aside the epistemological problems of determining original meaning) is to bind us to “the dead hand of the past,” thus limiting our ability to inform our implementation of the law with the values and challenges of the present; 2) “pragmatism,” whose primary defect is the replacement of “the rule of law” with the caprice of judges; and 3) “present-oriented interpretation,” which “seeks to appropriate the virtues of each,” but, by freeing itself both from “the dead hand of the past” and the living caprice of the present, relegates itself to the realm of the arbitrary. The defect of the present-oriented interpretation, according to Smith, is that it neither binds judges by the political will of the legislators who enacted the statute, nor empowers judges to pragmatically “promote present values and objectives.” Rather, it surrenders human rationality to an inanimate text detached from its authors but binding on its interpreters.
Zen and the Art of Legislative Interpretation
The theories and canons summarized above purport to address the fundamental ontological and epistemological questions of legal interpretation: 1) what is the law? and 2) how do we know what the law is? The normative as well as descriptive versions of these questions are implicit within them: 1) what should the law be? and 2) how best should we determine what the law is? As disciples of the philosopher, we know that it is ultimately impossible to determine what the law “is,” that it does not have a fixed objective reality independent of our act of interpretation. What it is is inherently elusive; what it should be is a debate framed by various fictions. How, then, should we conceptualize the enterprise?
“What is law?” and “What is the best way to determine what law is?” are both similar to the question Robert Pirsig asked in his novel Zen and the Art of Motorcycle Maintenance: “What is quality?” Is “quality” (in reference, say, to art or music) what a few self-anointed experts say it is, or what is most popular? Neither solution seems quite satisfactory: The consensus of experts (embracing, for instance, dots on blank canvases and atonal compositions) often appears more pretentious than insightful, but popular preferences (for, say, paintings of Elvis on velvet or songs by Brittany Spears) often appear more anesthetizing than aesthetically redeeming. Similarly, in academe, post-modernists and positivists ridicule one another for being either oblivious to reality or oblivious to the lack thereof, and no authority stands over these feuding camps to declare which paradigm is of higher “quality.”
But this elusiveness does not mean that “quality” does not exist. We know it does, can come to general agreement on some isolated examples (such as that a requiem by Mozart is of “higher quality” than the latest pop hit), and can wink among ourselves at some more contested examples (such as whether Sarah Palin or Joe Biden was a “higher quality” candidate for Vice President).
“What is the law?” and “what is the best way to determine what the law is?” are similarly elusive questions, similarly contested by the highest authorities, but referring to something as real, and a process as inevitable, as the recognition that “quality” exists. To arrive at the best (i.e., most functional and most fair) answers we need to embrace this reality rather than rage against it. The fundamental “defects” in legal interpretation we’ve discussed this semester are inherent ontological and epistemological limitations; they cannot be remedied, and therefore should not be cause for despair. They are parameters rather than variables, givens within which we operate rather than malleable factors upon which we can work our will. The self-help organization “Alcoholics Annonymous” has enshrined the appropriate attitude to take toward such parameters in The Serenity Prayer (“Give me the strength to change what I can change, the patience to accept what I cannot, and the wisdom to know the difference”). As obnoxious as it may be, it is none the less a pearl of wisdom: What sane alternative is there to this sage advice?
Therefore, the facts of diffuse authorship, unrecoverable original intent, and the inevitable injection of the interpreter’s subjectivity in the act of interpretation are not, per se, legitimate causes of concern, because they themselves (as opposed to how they inform strategies in response to them) are fixed constellations that can neither be wished nor legislated away. It is reasonable and useful to recognize and be informed by these facts, but not to lament them. To what extent these parameters should be openly acknowledged, and to what extent they should be discretely downplayed, is a question inevitably addressed by the process discussed in the next section.
The Political Epidemiology of Reifications (and other memes)
Within the parameters we are obliged to accept, we are confronted with sets of interrelated choices: To what extent should we prefer the “dead hand of the past” to the caprice of the present, and to what extent should we bind judges by increasingly elaborate algorithms of interpretation, perhaps, at the extreme, programmed to evolve by meta-algorithms as they encounter unforeseen circumstances, rather than delegating discretion to judges, incurring both the benefit of the latter’s more supple minds and the detriment of their prejudices and predispositions? How much caprice can be permitted without undermining legitimacy, and how much rigidity can be imposed without undermining substantive reason and justice? Steven Smith presents us with three alternatives, each of which reifies something clearly dysfunctional: either the increasingly anachronistic supposed intentions of the legislators who enacted the laws, or the prejudices and predispositions of judges largely untethered from those texts, or the decontextualized constraints that bear a disconcerting resemblance to medieval trials by ordeal. But to proffer no acceptable alternative is to beg the question: In this imperfect world, what is the best we can do?
In a sense, we are doing it right now. The people, the philosopher, and the magistrate are all just muddling along, individually and collectively pursuing desired goals, and, through some combination of trial-and-error and proactive innovation, carve our social institutions in the lathe of time and numbers. “Memes,” like genes, are packets of information that reproduce (are communicated), mutate (are altered through interpretation and innovation), compete for reproductive success (e.g., guns or spears? pantheons or Yahweh? socialism or capitalism?), and thus evolve (Richard Dawkins, The Selfish Gene, 1976). The myth of “the rule of law” is a somewhat successful meme, and in many ways beneficial to our collective existence: The magistrate is not wrong that the techniques by which it is maintained are all equally useful. But neither is the philosopher wrong to question the validity of those techniques, to analyze them, and to seek to refine them. Order without justice is oppressive; justice without order cannot exist. The reification of “the rule of law” provides more order than justice, but its absence provides neither. The challenge, then, is to accept its reification, and to maximize the justice produced by refining the particular form of that reification.
This is not a benign process, nor one actually pursued as a global collective enterprise. My use of the first person plural (“we”) has been a simplification that must now be unpackaged: The selection of genes according to their relative reproductive success produces organisms that are carved by the requirements of such success. This biological algorithm produces complex arrangements of both cooperation and competition, and a variety of strategies. Humans embody what may well be the epitome of the flexible strategy, one which in fact produces an echo of the evolutionary process in the form described above. We can conceptualize and communicate in order each to pursue his or her own fundamentally selfish agenda, which generates ever more sophisticated forms of cooperation along the way (just as biological evolution does, in the formation of ecosystems). Cooperation is so advantageous to those who can overcome the obstacles to it that our social institutions -our hierarchies, our markets, our norms, and our ideologies- are laden with mechanisms to align our individual and collective interests, through structures of legitimate authority, means of exchange, informal social approval and disapproval, and values and beliefs which create cognitive dissonance when we fail to police ourselves.
But the politics of the processes which produce these arrangements is an ever-present element. Cooperation is a means to compete more effectively: People, historically, band together to gain advantage over others. Human history is, in a sense, the story of conquerors and the conquered. Conquerors become rulers and nobles; the conquered become peasants and laborers. The competition between conquerors and their respective states, however, forces refinements to more effectively raise and finance armies, which forces some decentralization of power in order to better exploit the state’s human and natural resources in service to this competition. The decentralization of power fosters and facilitates resistance to power, while concessions by the powerful become increasingly expedient. By these and other mechanisms, the modern world saw the rise of “liberal” societies, and the ideologies that accompany them. But our social institutions still bear the imprint of violent power struggles which produced somewhat hereditary winners and losers, and our social institutions are still the arena within which such power struggles continue to ensue.
So, while order is useful, complacency about the existing order is always unjust. The reification of “the rule of law” facilitates our aggregate prosperity, but it disproportionately benefits the rich and powerful, because the rich and powerful were (and are) its authors. Justice requires resistance and criticism; justice requires Toto tugging at the curtain. It is a happy coincidence that evolutionarily successful memes have facilitated processes of decentralization of power and diffusion of wealth, and probably will continue to do so, gradually infecting even those societies less blessed by egalitarian social institutions. The egalitarian values that have gradually and incompletely matured in conjunction with this decentralization of power and diffusion of wealth reinforce the process, and motivate actions in service to it. But the underlying dynamic by which all this has happened, and will continue to happen, is essentially political, involving strategic behaviors in pursuit of personal and local advantage.
By sublimating primal conflict and channeling it through peaceful social institutions, humans prosper. Belief in “the rule of law” has proven to be a powerful meme contributing to the effective sublimation of that primal conflict. But the struggle for an increasingly just society that can and should take place within that social institutional context necessitates vigilant attention to the reality behind the myth, to the political exercise of power inevitably embedded in the depersonalized reification. There is an inherent tension that cannot be escaped: The sublimation and pacification of human conflicts and passions accomplished by the reification of “the rule of law” is simultaneously oppressive and liberating. It liberates us from the “war of all against all,” but it institutionalizes the brutality of huge disparities of wealth and power. And as such it challenges us to strike the delicate balance between maintaining the myth and resisting its ossification.
In light of this analysis, the goal of legal interpretation, then, is not to be true to the political will of those who enacted the statutes, nor to avoid the “mindlessness” of “present-oriented interpretation,” nor to eliminate the caprice of judicial pragmatism; it is, simply, to maximize the justness of the imposition of authority on those who have been pacified by that authority. Clearly, the respective defects of these three modes of legal interpretation each reduces, in one way or another, the justness of the authority thus imposed. But just as “the perfect should not be the enemy of the good,” neither should it be the enemy of the merely possible. Identifying the most just, or perhaps the least unjust, option among all known alternatives (while simultaneously attempting to contemplate alternatives not yet known), and engaging in the political struggle to implement it, or to implement a compromise that approaches it, is the best we can do.
The fact that these competing flawed paradigms are discussed and debated, each having its own authoritative supporters and detractors, with the ever-present possibility of new additions entering the fray, is precisely the robust competition of memes required to prevent the ossification of a suboptimal status quo. Nor is it merely an ivory tower academic exercise: Judges themselves, by the choices they make, subject these paradigms to the crucible of human experience. It is a messy and often unjust process, but, at present, I can think of no way to improve upon it, and if and when I do, I will merely be participating in it. As John Maynard Keynes subtly put it (before Winston Churchill appropriated the quote in particular reference to Americans), “Men (sic) will do the rational thing, but only after exploring all other alternatives.”
The Emperor’s New Clothes
The law, like all social fictions, is a naked emperor whose clothes we are taught to admire. Law school is the in-depth analysis of the fine raiments the naked emperor wears. To the curmudgeonly philosopher who feels obliged to point out that the whole process is the reification of an unreality, that the real fates of real human beings are decided by a confused little man behind a curtain, that the Great and Powerful Oz is all smoke and mirrors, this vast fiction is malignant rather than benign, half empty rather than half full. But it is neither particularly malignant nor particularly benign; it is what it is.
Not all social fictions, not all social institutional contexts, are equal; not all are of equal “quality.” A quick survey of systems of justice and checks on power that the world has yet produced suggests that the myth of “the rule of law” is worth retaining for the time being.
That the fiction evolves, driven by some combination of psychological needs and material desires, through political struggles large and small, is, at the very least, one of nature’s fascinating wonders. Rather than apes foraging in the African savanna, naked and vulnerable to all of nature’s limitless injustices and indignities, humans now live clothed in the products of the mind, which inflict limitless injustices and indignities of their own. And yet, these fictions, these products of the mind, these technologies and social institutions, afford me the luxury of contemplating them, while sitting in this comfortable chair, sipping my favorite beverage. Through such contemplations, and a prospective career dedicated to helping sew and select the naked emperor’s imaginary wardrobe, I hope to marginally influence the evolution of legal memes in such a way as to ever-so-slightly increase human welfare. The American judicial system is still laden with injustices and indignities, with intolerable frustrations and galling deficiencies. There is no cause for complacency. But this horribly imperfect system fares well in comparison to known alternatives. And it certainly beats running from lions on the African savanna.
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As Max Weber noted nearly a century ago, and as others have noted in various ways and various contexts, there is an inexorable logic to certain developmental paths that is not always in best service to our humanity, or to our ultimate goals. Weber called it the “rationalization” of society, an “iron cage” from which we can’t escape. We see it in evidence today in such things as economic globalization, over-reliance on fossil fuels (with all of the associated environmental and international consequences), and weakening of American communities in favor of both geographic mobility in service to careers and school choice in service to (or so the theory goes) increasing market forces disciplining public education. We also see it in politics, in the strategies used to win elections and campaigns, and the short-sighted, ritualistic attitudes fueling them.
I wrote about this once in reference to my own campaign in an overwhelmingly Republican district, in which I sought to maximize the value of my campaign win-or-lose rather than follow strategic prescriptions oblivious to any goal other than electoral victory, almost to the point of considering adherence to that goal a moral imperative even if more good can be done by looking beyond it (see Anatomy of a Candidacy: An Illustration of the Distinction Between Substantive and Functional Rationality). As the title of that essay illustrates, the salient distinction is between functional and substantive rationality, the former being the drive to make the processes by which goals are pursued ever more efficient and effective (which is what drives the inexorable “rationalization” of society discussed above), the latter being the relatively disregarded need to consider whether the goal being pursued is always and under all circumstances the most reasonable of all goals. Substantive rationality, to put it another way, refers to focusing more on what we are trying to accomplish than on how we are trying to accomplish it, and ensuring that we are not just constantly refining our techniques, but also constantly refining the goals that those techniques are mobilized in service to.
Politics is as caught up as any sphere of life in the goal-displacement of almost exclusive focus on improving the techniques by which the goal of winning elections and campaigns is pursued, and almost complete disregard for subjecting those intermediate goals to constant scrutiny in light of our long-term goals of putting this state, country, and world on an ever-accelerating path of ever-increasing reason and justice. True “progressives” need not only pursue progress on an issue-by-issue, candidate-by-candidate basis, always assuming that their own current understandings are perfectly accurate and incontrovertible, but also need to constantly reassess those current understandings, and seek to implement and advocate for improving the procedures by which we think and act in order to best serve our ultimate goal of improving the quality of life on Earth.
There is a related economic concept of “path dependence,” which is the tendency to stick with sub-optimal current ways of doing things due to the start-up costs of changing paradigms. A classic example is the “QWERTY” keyboard, which was designed to avoid the jamming of keys on the original mechanical typewriters. It is no other way the most effecient arrangement of keys on a keyboard. Yet the costs involved in everyone relearning how to type (or “keyboard,” as it is now called), along with other incidental costs of changing the keyboard arrangement, seem to outstrip any consideration of making a shift. We see this phenomenon throughout the social institutional landscape, in which existing social institutional procedures and structures have an inertia which outstrips their utility, all things considered. Path dependence has a psychological as well as economic dimension to it, with new ideas facing the habits of thought and belief into which potential adherents have invested themselves.
One of the necessary remedies to this imbalance is to constantly keep that ultimate goal in mind, and to not lose it to the short-term goals of winning elections and campaigns. That does not mean that the short-term goals are irrelevent, and the strategies in service to them can simply be disregarded. But it does mean that we keep in mind at all times that those strategies must always be mobilized only in service to our ultimate goal of improving the quality of life on Earth, and never allowed to blindly displace it.
This involves a bit of a cost-benefit analysis (always asking “does this strategy cost us more in terms of the ultimate goal than it benefits us in pursuit of it?”), and a recognition that the means have many incidental systemic consequences that may not adversely affect the intermediate goal of winning an election or campaign, but can adversely affect our social institutional landscape in ways which at times outweigh the marginal value of improved chances of winning that particular election or campaign. The cumulative effects of these incidental consequences of functionally rationally but substantively underscrutinized procedures and techniques are highly significant, and is one of the fundamental drags on robust long-term political progress.
I recently encountered an example of this on a left-leaning Facebook page, in which one participant posted a video of which she was very proud, that her organization had made, whose purpose was to stoke up popular rage against corporate power and influence. I found the video appalling, because it reinforced our irrationality rather than our rationality, reduced the issue to a two-dimensional caricature of the real issue, and was as likely to motivate a clammor for bad policies as for good ones (which is the cost of not only appealing to emotions in service to some rational end, which is generally necessary, but rather appealing to emotions in service to an emotionally defined end, which is frequently counterproductive).
This is what I call “the angry left,” a movement which superficially seeks progressive goals, but does so via methods which reproduce rather than moderate or transcend the underlying structural problems which favor irrationality over rationality in political decision-making, and which reinforces rather than counterbalances our tendencies toward mutual hostility rather than mutual cooperation. If the ultimate goal is best served by trying to increase the degree to which reason and universal goodwill guide us and inform our policies, then processes driven by irrationality and belligerence are unlikely to serve that ultimate goal very well in the long-run.
Ironically, “raging against the machine” in many ways reduces us to mere cogs within it. We have to aspire beyond the machine, to actualize and realize our humanity, to celebrate and believe in our potential to transcend our current state of being, as individuals and as a society. It is not that we can snap our fingers and create some lofty ideal, but rather that we are capable of doing better than we are doing, and we have to strive to do better than we are doing to realize that capacity.
This is not a call for political pacifism or non-confrontationalism. I confronted the woman who posted and extolled that video, just as I confront those on the right who argue belligerent and irrational ideological positions. But it is a call for keeping the ultimate ends in mind, and never forgetting that the means by which we pursue intermediate goals in service to those ultimate ends affect how well we actually move in their direction above and beyond their effects on our ability to achieve those intermediate goals.
The remedy to this perennial error of remaining locked inside the logic of political ritual and theater is to increase our attention to substantive rationality, even while maintaining our commitment to functional rationality in service to it. We do not want to let the latter displace the former, but cannot ignore the latter while pursuing the former.
This means moving toward grander visions, and more comprehensive strategies in service to them. Focusing exclusively on winning this election of this campaign locks us into the logic of short-term functional rationality and prevents us from being guided by long-term substantively wise goals. We need to be visionaries, and to promote visionaries, and to cultivate visionaries, rather than be political hacks, promote political hacks, and cultivate political hacks. We need to believe that we’re capable of doing substantially better than we are doing now, as a people, as humanity, and then figure out how to pursue the long-term goals which serve that far-sighted vision.
I am increasingly frustrated, because it is not that this is too complicated, or too difficult to do, but simply that we are too unaccustomed to consider the need for doing so. We have reduced politics and political activism to a set of technically refined rituals in service to short-term goals in struggles over immediate outcomes, and have almost completely lost sight of how our real political struggles cannot be measured in election cycles, nor are limited to what we commonly think of as the political sphere. Everything we do is political; every effort we make, individually and in various degrees of organizational collectivity, is political, and has political ramifications, because it all affects our social institutional landscape and coalesces into our ongoing evolution as a people.
We need to constantly remember that political efforts are not something separate from the entirety of our social institutional landscape, but rather something seeking to articulate with that entirety (see The Evolutionary Ecology of Social Institutions) and the entirety of our processes of social change (see The Fractal Geometry of Social Change) in the most effective ways possible. This requires a part of our movement, a portion of our efforts, to be removed from our sophisticated, highlyt rationalized political rituals, to step back and remain critical of them, to attend to the larger picture and the longer term, and to discipline those technically sophisticated processes in service to our ultimate goals rather than forever co-opted by our immediate goals.
There is a way of doing this, if enough of us are willing enough to invest enough of our time, effort, and passion into it. There is a way of increasing the salience of reason and universal goodwill in our political efforts, to make them more attractive forces, to inspire people to move in their direction, not by ignoring the realities of our cognitive processes, but rather by addressing them in service to our ultimate goal of creating an ever kinder, gentler, more reasonable world. (See A Proposal, The Politics of Reason & Goodwill, simplified, and How to make a kinder and more reasonable world, as well as the rest of the essays in the second box at Catalogue of Selected Posts, for an overview of my proposed methodology for pursuing this long-term vision).
Please join me in this effort. Help me to engage in the processes that serve our humanity, not just by fighting against our inhumanity on its terms and in its arena, but by trying constantly to refine the arena itself, improve our political substructure and popular processes, and make that social institutional framework one which is ever more defined by our humanity and our commitment to reason and universal goodwill.
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At about the age of thirty, simply by following logic and observation wherever they led, I came to the unremarkable conclusion that markets are robust generators of wealth, and, as such, contribute in vital ways to human welfare. But, at the same time, I recognized that their very robustness not only amplified our productive activities, but also their destructive side-effects. And I have always been aware of the danger of false idols, whether they come in the form of the U.S. Constitution (“Constitutional Idolatry”), an oversimplistic and self-defeating conceptualization of liberty (Liberty & Society), or a pseudo-economic conviction that markets are completely self-regulating providers of all that is good and holy on Earth (The Economic Debate We’re Not Having, Regulation of Financial Markets).
Markets aren’t just functional, but, especially in the traditional sense of actual locations where wares and ideas are hawked, they can also be vibrant slices of life (Welcome to the agora!). The notion of human beings coming together to exchange the products of their hands and minds is an inherently appealing one. And the vitality of such places, the color and richness and pageantry of human activity, especially in its more primative forms, is hard to deny. Life isn’t just about producing and consuming wealth, or even ideas, but also about living, and such places are rich with the act of living. (Ironically, I can barely stand to spend two minutes in modern malls, finding them to be mind-numbingly sterile rather than lively).
The German Sociologist Max Weber warned about a century ago of “the iron cage of rationality”. The evolutionary logic of human history increasingly “rationalizes” our social institutions, but not necessarily in ways which maximize human happiness and welfare. The theme is similar to the one found in Aldous Huxley’s famous novel Brave New World, or Fritz Lang’s famous silent movie Metropolis: We gradually turn ourselves into cogs in a machine which operates according to a logic of its own (maximizing “efficiency”), sterilizing our world, reducing us to servants of the machine we have created, and sapping our lives of that which makes them truly satisfying to us as human beings.
It may well be that this precautionary tale is overstated, that efficiency itself eventually recoils from too much dehumanization, because the human mind and imagination, a resource whose maximally efficient functioning is an essential component of an efficient social institutional framework, does not thrive in such sterilized and dehumanized contexts. But, be that as it may, there is certainly one force in play, the drive toward increased mechanical efficiency (which would prevail, say, on assembly lines), which can be a brutal tyrant as well as a generous provider.
When we focus exclusively on GDP as the indicator of economic success, and ignore the gini coefficient (the statistical measure of inequality in the distribution of wealth) and the ecological and public health damage caused by the production and consumption of that wealth, we are surrendering to the iron cage of markets, privileging “efficiency” over all other concerns. There is nothing inherently just about those born into the world with inferior opportunities (less inherited wealth, social network advantages, and familial experience of success to serve as a model, for instance) being left either to beat the odds or suffer the consequences, not because life has to be fair (or ever fully can be), but because we should not casually shirk our responsibility as human beings to make it more so. There is nothing wise about privileging the production of wealth today at the expense of the Earth’s biodiversity and the predictable future costs, perhaps truly apocalyptic in scale, of our increasingly aggressive parasitism vis-a-vis the host body upon which we depend.
But markets do not have to be inequitable, nor parasitic. We can be the wise stewards that we need to be, incorporating into the mechanisms of markets themselves the goals and values that they do not automatically attend to. We can “internalize the externalities” so that market activities which impose costs on others, both today and in the future, are priced in ways which force buyers to take those external costs into account, so that buyers can decide if the value to them is truly worth the costs to others (thus, in aggregate, reducing those activities to the levels that truly serve our collective long-term interests). And we can make public investments in the development of both human and material infrastructure, to make markets more robust producers of wealth, and human beings regardless of the chances of birth more fairly able to partake of that wealth. We can keep working to get it right, rather than to surrender our wills to some dehumanized force that we have turned into a false idol.
In terms of addressing abject poverty, markets as they currently exist leave many behind. Those living primtive lives have little to offer to attract the wealth produced elsewhere, and, when they do (generally in the form of natural resources), markets are brutal exploiters of their desperation, paying them less than those less in need would receive. But we can use markets, intentionally, to do what they do not do organically: We can provide infrastructural investments which create the ability to produce something for local markets, and tiny start-up loans to enable poor folk in poor conditions (mostly women) to engage in some productive activity (“Grameen Banks” have been hugely successful in this: http://www.grameen-info.org/). We can devise small innovations, like trundle pumps (to ensure potable water where water is scarce), and cook stoves (to reduce the emissions of black soot that plague many desperately poor people around the world, and contribute significantly to global warming), which get those most in need into a position where they can benefit from markets. We can see markets as a valuable tool to be utilized in this shared human endeavor of ours, rather than a justification for doing nothing to address the horrors of an unjust and in many ways self-destructive status quo.
We must always be the masters of our technologies and social institutions, never their servants. They exist to serve a purpose, not to demand our allegiance and submission. The vitality of markets, in the modern sense, as robust producers of wealth, and in the traditional sense as vibrant slices of life, needs to be made whole again, if not in the actual appearance and ambience of most of our marketplaces themselves, than in how we view them. Markets are vehicles of life, where we come with our needs and desires and offerings, to enrich one another both materially and spiritually. And it is incumbent upon us that they are inclusive rather than exclusive, providing opportunities rather than exploiting desperation, and addressing problems more robustly than they create them.
