Law in Contemporary Society
I have been trying to identify and understand a kind of anxiety I have felt while reading materials for this class thus far.

The “problem” of the course has been identified, albeit with some hesitation (aka the “pawning of the license”). The Holmes and Cohen pieces were assigned to provide us with the tools to attack the problem (aka the function of the functionalist approach). Accordingly, the next step will probably be for us to learn how to use tools like functionalism to not pawn our licenses.

Assuming we identify the problem, gather the tools, and learn how to use the tools, it remains to be said whether we will be able to achieve our ultimate goals (whatever those might be).

How, then, can we conceive of the force compelling us? Let me see if I can frame this better.

The pragmatists and other realist thinkers of Holmes’ time were motivated by the idea of history as changing for the better—that is, history as progress, as evolution. Similarly, Eben brought up Weber’s analysis of Calvinism. The Calvinists were motivated by their desire to prove they were one of God’s chosen few. Both of these groups viewed life as operating according to a kind of algorithm. The consequence is that each person using the tools of the system risked very little to attain their goal (be that goal scientific advancement or the salvation of their soul). For example, if I as a Calvinist worked very hard and accumulated lots of profit, I proved to myself and everyone else that I was one of God’s saved and was thus necessarily saved. Little risk, big effort, but big gain.

Staying away from religion, I do not believe there are any such pervasive algorithms today. (Regarding pragmatism, it is clear—to me at least—that the current state of affairs is in general hardly better if not worse than those of the past.) Accordingly, by using tools like functionalism the risk is much higher that we will not attain that which we desire (or worse, that we will end up with that which we never desired at all).

Maybe the anxiety we are currently facing is ultimately us grappling with what we take to be this increased risk??

-- KalliopeKefallinos - 09 Feb 2010

I think I understand the anxiety you’re talking about. And while I don’t necessarily have an answer, I think there are a couple of things about the present moment in particular that might both contribute to and provide an outlet for that anxiety.

I’m going to rely here on an essay by Elizabeth Povinelli, who’s an anthropology professor here at Columbia and whose work focuses on articulating a critique of late liberalism. I downloaded the essay somewhere online about a year ago, but I can’t find it again, so I’ve uploaded it here. It’s a relatively quick read, but I’ll include the main points below. Apologies nonetheless for the relative length -- I think it’s worth the space to understand what both she and Le Guin are getting it. It also bears on the ongoing discussion about MiddleClassCulpability.

Povinelli begins by referring to "The Ones Who Walk Away from Omelas”, a short story by Ursela K. Le Guin about a society whose happiness -- and it is “an experientially unmediated, materially substantive, and morally desirable” happiness -- is predicated on the constraint and humiliation of a child locked in a broom closet. Moreover, everyone in the society realizes that their happiness relies in some way on the child’s being miserable. The story was meant as a counterpoint to the American pragmatist articulation of morality (think James, Peirce, and to some extent I suppose Holmes), which asserts that actions should be oriented towards future goals and future perspectives and refuses ethical legitimacy to any critique which locates itself in the radical present -- as opposed to the present from the perspective of the future. In other words, this pragmatism’s ethical imperative demands that one asks not how to make possible the good life in the present but rather what steps might be taken in order to make possible the good life in a future world.

Povinelli writes:

"Le Guin’s alternative ethics depends on altering three ways in which liberal subjects normally encounter the social time, meaning, and scale ofsuffering and lethality in their societies."

"First, as opposed to those who would read ethics from the perspective of ends, Le Guin insists that, because there is no horizon in which thischild could be incorporated into the material and emotional good of the city without that good being compromised, the ethical nature of the relationship between the residents of Omelas and the child in the basement cannot be deferred to some future anterior perspective -- what will have been the meaning of this suffering from the perspective of a future interpreter we cannot as of yet know. As a result, the ethical relationship that links the citizens of Omelas to the child in the basement must be radically present tense."

"Second, any goods generated from the kind of misery found there must be seen as socially cosubstantial as well as temporally nontransferable. My happiness is substantially within her unhappiness; my corporeal wellbeing is part of a larger mode of embodiment in which her corporeal misery is a vital organ. As a result, the ethical imperative is not to put oneself in her place, nor is it to experience the anxiety of potentially being put in her place. Le Guin rejects such ethics of empathy. Instead, the ethical imperative is to know that your own good life is already in her broom closet and, as a result, either you must compromise on the goods to which you have grown accustomed (and grown accustomed as thinking of as “yours”) or admit that these goods are more important to you than her suffering."

"Finally, the nature of the suffering that interests Le Guin is ordinary, chronic, acute, and cruddy rather than catastrophic, eventful, and sublime. Every so often the child in the basement is given a kick. But for the most part her misery is a quieter form of abjection, despair, and impoverishment. There is nothing spectacular to report. Nothing happens that rises to the level of an event. Life drifts into a form of death that can be certified as due to 'natural causes.' As a result any ethical impulse dependent on a certain kind of event and eventfulness flounders in these closets."

Povinelli wants “to understand why present tense modes of live and dying are transformed into future anterior modes of the proper life,” and she argues that ultimately we might try to understand -- and to act accordingly -- that "life is defined not by some redemptive future but by the understanding that this is what is. No future will have made it anything else. No present can be divided in such a way that what I have—my body and its health, my things, my affects—is not co­substantial with what you have and do not have. We hardly have to have the same things, the same desires, tastes, languages or aspirations. But the tighter the neoliberal market ties us all to one scale of value, the looser the post-­Fordist state’s grip on any ethical obligation to the health and welfare of its citizens, and the more wakeful late liberal subjects are to what time it is, the more gripping Le Guin’s simple ethical paradox becomes. Everyone must decide if their happiness is worth the suffering of those within the fetid broom closet. And in this world where we live there is no exit. We can only change the distribution of life and death so that some have more and some to have less."

So, if you’re still with me, I think partly the answer to your question about the anxiety we’re facing is to understand that we should be operating on a couple of levels of both inquiry and action. Assuming that we’re interested in working for a better world, we’ve got to learn strategy, and to do what we can to ensure a better situation in the future; but at the same time we shouldn’t allow our orientation towards the future in that respect to cloud our vision of the facts on the ground. Presently those facts aren’t so good -- not that they’ve ever been. But in the current moment, in the midst of a global economic crisis and multiple (and asymmetric) wars -- a crisis and wars that have in some ways been fostered and amplified by an explosion of information flows -- those facts are perhaps less avoidable than they might have been in the past. We are constantly faced with the fact that we are living in a world that we are seemingly unable to right. And so I think the anxiety that you’re talking about stems not so much from the increased risk that we won’t attain what we desire as it does from the tension between a future-oriented strategy and the radical present that we seem powerless to change, or at least in which our efforts might not be as immediately evident as were those of Weber’s hardworking Calvinists.

But all this doesn’t mean that there are no more algorithms. In fact I think that within the tension between our present and future interests there lies an ethic impelling those algorithms forward while we yet remain conscious that things are not so rosy as we would like. And in making ourselves conscious of the present -- in realizing that in our lives are also implicated those of others, that out there are children, so to speak, in broom closets -- we enable ourselves, to however slight an extent, to walk away, and forward into the future, from Omelos. And so the force compelling us would be our conscience.

-- GloverWright - 09 Feb 2010

Interesting point, Glover. It appears you are saying that although the present moment may lack a simple algorithm (such as "work hard to prove that you're one of God's chosen), we can still build algorithms to guide conduct by strategically balancing present concerns with future concerns in order to map out the best path forward to a "better world." I suppose this is true.

But I would argue that the problem today is that no one really knows how to get to a "better world" at all, either by sacrificing present concerns or by balancing future and present concerns. Various macro-level theories are advanced about how to proceed to a "better world." The problem is, there seems to be no agreed upon way to determine whether a particular macro-level theory works or not. Statistics are thrown around, groups rally mindlessly around their own particular theory-totem, and no one ever really knows whether a particular policy actually did anything productive or not.

-- ChristopherCrismanCox - 15 Feb 2010

Well, I shouldn’t have read the Omelas story before bedtime. That’s some imagery I’d soon rather forget.

Before I respond, let me first summarize what I take to be Glover’s position: The various current events of the present day gives us a feeling of hopelessness. Consequently, we find it increasingly difficult to find the motivation to work for a better future. Nonetheless, we have an “ethic” which impels us to keep following “those algorithms…while we yet remain conscious that things are not so rosy as we would like.”

I would like to know what you mean by “ethic” and “those algorithms.” Is the ethic the “conscience” you mention in the final sentence? What does the conscience say to impel someone to keep pushing themselves forward when they feel hopelessness?

To respond to Christopher, I agree with your point about questioning the validity of proposed macro-economic theories and other policies (right?), but I think I would add a power/ greed component. Even if some theory/ set of theories was highly likely to “work,” the only people with the power to implement the theories at the end of the day would rather keep the child in the broom closet than get the hell out of Omelas.

-- KalliopeKefallinos - 18 Feb 2010

I would say the ethic is the code of conduct by means of which we make apparent our knowledge that somewhere out there is a child in a broom closet, but that we are no longer participating in detaining that child. Practically speaking this might mean that we pay a little bit more for our clothes, or that we divest from certain corporations, or that we stop packaging shady derivatives or manipulating the forex market -- or in the case of the latter two examples that we stop legally representing those who engage in such activities. Maybe it means shifting from a militant to an aid-based approach in Afghanistan and Pakistan.

As for the conscience, I guess if you want to get technical -- and here I wasn't, I was sloppy -- would be whatever kind of moral sense awakens in us the realization that our happiness, if it's going to be real happiness, can neither be predicated nor ultimately sustained upon the misery of a child -- or in reality a substantial portion of the world's population.

As for my "better world" rhetoric, mostly my point was that we can't redeem the present through any sort of appeal to the future; this is all we've got, and so we have to start by identifying the problems of the present and facing them head on. On an individual level, we don't need macro-level theories; all we need to do is identify a problem that we would like to tackle, and formulate a strategy for doing so. This goes back to what Eben says about the meaning of having a license -- we each choose our own battles, if we so wish. And if we find that one thing, or those few things, that we want to accomplish, we'll certainly know at some point if we're getting anywhere. So maybe the whole point -- and here's one more trope for the road -- is that we need to think grandly on a small scale.

As for feeling hopeless, I think -- I hope -- the point of having a license to practice law is that at least on some level you never really need to feel that way. You've always got that little bit of power.

-- GloverWright - 2 March 2010

Sorry it took me a while to respond-- I wasn't quite sure what to write. I understand what you are proposing, but it just sounds way too optimistic or idealistic to me. I doubt most people would adopt this world view and truly believe in it/ act according to it, unless you attach some religious/ spiritual significance to it. Maybe we will feel less hopeless because we'll have a license, but we are a small section of society. What about everyone else? How many world disasters need to happen before the majority of people get over their bullshit and adopt the kind of clarity you advocate?? I don't have a better idea, though, which is why I started this thread in the first place, so... :/

-- KalliopeKefallinos - 21 March 2010

Fair enough, but I think this kind of world view is freeing in the sense that it doesn't require an appeal to anything outside of human decency, which we haven't yet lost. There's no transcendental nonsense, just the idea that lives -- and living in certain ways, and certain places -- have consequences. And once you stop turning a blind eye to injustice, or failing to act because you believe certain conditions must be met prior to action, you can make yourself useful. There's been some good discussion about this here.

-- GloverWright - 24 March 2010


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r9 - 17 Apr 2010 - 16:10:37 - NonaFarahnik
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