Law in Contemporary Society
-- NonaFarahnik - 25 Feb 2010 Since I started this Talk page and I get to edit everyone's stuff pretty soon, I have some sort of power over what goes on here. As such, I am going to pretend that whoever else comments will listen to what I say. I find it offensive and counter-productive to our conversation when we malign another person's comments by acting so incredulous as to be demeaning. There is a fine line between when criticism stops being constructive and we should try our best to be mindful of it. Eben is the benevolent monarch and he knows what he is doing, even though I question the effectiveness of some of the language he uses with his scary red text. If we are bemoaning the lack of empathy in the way we treat other living things, we should at least be mindful of the fact that those other living things have feelings. We undermine the very purpose of this class when we scare people into silence, which is why some people never take a stab at joining the conversation. I Will edit your mean comments away. I AM THE MONARCH OF MY TALK PAGES AND MY TALK PAGES ARE FRIENDLY TALK PAGES :).

Post publishing note 2: This class is extremely important to me and my criticisms are made in light of my obligation to be an active force in my legal education.

I was pretty riled up after class today. Of course, part of the problem is that Eben is one of the most knowledgeable people I have met. Arguing with him feels like taking a paintball gun to a tank (it is difficult to use a metaphor because I know Eben can immediately break it down to its precise historical meaning and quickly strip away the basis of an ill-informed comparison). In general, this is good because it requires us to do our homework, and to choose our words carefully and precisely. Still, it leaves me knowing that my argument will always be vulnerable to some historical reality I have never contended with or the misuse of a word that wasn't even central to my point in the first place.

Sometimes I wish Eben would give us more time to talk out our ideas, even if they are formulated in imprecise ways. It often feels that he responds to the inaccurate parts of what we say, even when he knows it is not what we mean. In this way, his conversation with Mike was deeply dissatisfying for me. Our complacence in the face of our military robot apparatus' killing of innocent Afghans is more than an exercise in suppressing empathy (though it is part of it). I think it is honorable and worthy that Eben would be the most zealous advocate for Mr. Stack if he had lived to see a murder trial. I also, however, think it is honorable and worthy for someone to represent our government, its people (what people? Eben might say) and Vernon Hunter's family, and to prosecute him. In class we make abstractions of the People In Charge and the People In Shackles. Those abstractions remove us from the reality that WE ARE GOING TO BE THOSE PEOPLE (mostly, the ones in charge).

As students at CLS each of us is already part of an elite class of citizens. Moreover, law is politics, and we are going to be lawyers. In Eben's "America is an aristocracy, not a democracy" formulation, we are the supposed aristocrats. And this is where I get stuck. How can I simultaneously be acquiring a license to fight for justice and be seeking to do so through the much-maligned societal positions we discuss in class? I don't think we give a fair shake to the people who actually make up the public order. (I know that we can find 1000000 people who have done fu**ed up sh*t over the course of their roles in public life but there are another 1000000 who give it their best and who have made positive, lasting, and unnoticed change in this world). Is our distribution of resources troubling and unjust? I think so. Does that mean there is no value to the advancements we have made and where we stand with respect to the rest of the world? I think not.

After having an up-close view of a corrupt district attorney, I always wanted to be a just prosecutor. Yes--an agent of the state apparatus that kills people and locks them up. But also an agent in a system of law where I can stop a prosecution for a constitutional violation way before a defense attorney ever must, or drop a case when I know I should. I am motivated to be a person in government who takes my democratic responsibilities seriously. For whatever bullsh*t Constitutional Law might feel at times, somewhere in there our pretenses (false or not) have given it the flexibility to go somewhere better than before. Anyhow, WE are the ones who will take up the mantle of expounding the Constitution.

A professor related the relationship between legal actors and the law to the sport of curling I want the legal arc of our country to bend (hard) towards justice. I think that takes people on both sides of the puck.

Nona, I think you make some important points. I am going to paraphrase what I heard of the conversation with Mike. (I am omitting the less important part of the exchange that involved the use of the word "only" and a comical image of Eben in a baseball uniform stealing second base.)

Eben: The nature of my practice is such that I would defend Joe Stack rather than be the prosecutor. He would need a good lawyer.

Mike: How could you defend him? He killed a man.

Eben: Is there any difference between the man he killed and the children that we kill every night in Afghanistan with Predator drones?

Mike: Yes, Mr. Stack killed an American citizen.

Eben: That is an awfully thin distinction.

I don't think that Eben is condemning the hypothetical prosecution of Joe Stack or denying that the victim needs justice. I think he was frustrated that we could not get past the fact the Mr. Stack killed someone when our government kills Afghan children using remote control airplanes. If you are upset with Mr. Stack, then you should be upset with the government as well.

Yes, we are going to be the people in charge. Eben just wants to remind us that there are people in shackles, and that we should fight to change that. Patting ourselves and our government on the back leads to complacency. Everyone of us is exceedingly lucky and privileged to be here. What we do with that privilege is what matters. There can be just prosecutors; they just need to keep these ideas in mind.

I wrote a little more about this here.

-- JohnAlbanese - 26 Feb 2010

Eben's "we are all kin" theory is just utter nonsense. So we all share mitochondria. Don't cows have mitochondria? We all have an assortment of oxygen, carbon, hydrogen, and nitrogen atoms. Does that mean I am kin with an apple? Of course not.

I don't believe for a second that Eben truly believes that there are not degrees of kinship in society. It runs completely contrary to the position he usually stakes out on the is / ought continuum. I feel it is a position of calculated necessity--he is choosing an extreme position for intended effect.

I similarly feel your frustration about arguing with Eben. But one thing you must remember is that a lot of the time it is just theater.

-- MatthewZorn 28 Feb 2010 - 23:21:18 -

You're kidding, right? Like this guy? Why is it in our interest to perpetuate an idea of moral difference between ourselves and other living things? The argument should be even easier than just the difference between ourselves and other people. Do you even see why dropping those distinctions might be productive for us? I'm not sure you understood what Eben was getting at, and are blaming the method without understanding the message (something I've certainly also been guilty of in the same context). -- DRussellKraft - 01 Mar 2010

Well, I'm glad to see that Eben has succeeded in filling you up all up with his rules. May I inquire discreetly: why is it in our interest to not perpetuate ideas of moral differences? I understand the message, think its worthy of consideration, I just don't think it is connected to the reality any of us live in. I think humans necessarily create these relationships and distinctions because they naturally flow from human psychology.

-- MohitGourisaria - 02 Mar 2010

Matt, I honestly think your argument above is elitist and an expression of insecurity (in what capacity I do not know).

I do not disagree.
First, it doesn't matter whether Prof. Moglen adopts theater to make his point. The Greeks did it, Dr. King used it, and you and I rely on it everyday to produce an effect (else, we would be passionless and ineffective cows, the type you invoke in your argument). So let's not attack substance on grounds of style.
Everyone uses theater, the most effective orators in history used theater, so we should ignore it here? Theater is inextricably tied to substance. The ability to see and recognize theater (especially when it is using to cover for an unpersuasive argument), is, in my mind one of the key aspects of being an attorney. Picture yourself as a poker player in Las Vegas. You don't think the ability to read people at the table is critical to revealing the substance of their cards?
Second, to understand what kinship means (and I do not claim that I do), one has to recognise one's own position in the universe in tandem with everything else that exists. The label of being American or being white (or any other classification on your continuum) is a convenient measure propagated by those who can then rule over you by shackling you to those classifications.
I'm glad to see you are working here for the benefit of Mr. Moglen. I agree, there are many overrated aspects of my classification as an American and citizenship in general. But have we ever considered the merits of citizenship?
The reason that you do not feel akin to the apple you eat is that you fail to understand how that apple has come into your hands in the first place. The reason an Afghani kid's life may be less valuable to you is that you derive your sense of self-worth (or ego) through your American citizenship, race, or your "superior" position in society.
The reason an Afghani kid's life may be less valuable to me is that I do not have any idea what a day in the life of an Afghani child is like. (To be honest, the Afghani's kid's life isn't less valuable to me.) But, I'll willfully concede to your larger point. Maybe I am trying to hide myself behind a wall of illusion.
Speaking as someone who (according you your position) probably shares no kinship with you, let me state that there are more universal, and less detrimental, ways in which one can discover his relationship with other sentient beings.
Let me end any further distortion of my argument here: I am not arguing that humans are not kin. I just do not see kin as a black and white, binary thing. I see a continuum or degrees of kinship. I see the potential usefulness of these distinctions in the real world, and I am trying keep an open mind in the face of Eben's intellectual assault. Scottish clans had wonderful benefits for their members for centuries. Do moral distinctions necessarily exist? Perhaps. I'm not sure. But from my understanding of history, these perverted notions of kinship have existed in practically every historical era and were useful constructions, at least in some way, for the reality in which people faced. I have not seen convincing evidence that the world would be a better place devoid of kin distinctions--after all, the grass could just be greener on the other side. The real issue for all of us to consider is whether obliterating kinship distinctions will offer us any repose our thoughts and make us feel any different at the end of the day. For me, I currently think no, because it is quite divorced from my understanding of human nature and the reality I live in and any reality I have been familiar with. To echo Nona "the human condition seeks [some sort of] constructed social identification." But I may be entirely wrong.

The truth, to me, lies somewhere in between what Eben is saying and what is the common perception. I admire Eben's ability to stake out extreme positions effectively (substantively or stylistically) on such issues in order to help send our minds wandering. It does not really matter if he is wrong, because he often needs to stake out "wrong" positions (through theater, perhaps) to get things where they belong, get our heads out from hiding in the sand. Is Joseph Stack's victim closer than an Afghani child to me in kin? Should we care about the Afghan Child? Maybe. Maybe not. If the answer is no, it has nothing to do with mitochondrial DNA.

01 Mar 2010 - 02:53:20 - KayKim? -

I agree with Eben in that a citizenship is an awfully thin distinction. I think Eben brought up the "Mitochondria" example to suggest that nationalism is a social construct; we are all kin biologically, yet we construct some kind of socially constructed barriers and identities to separate each other. This social construction further creates "we" and "they." And suddenly "we" stop caring about what happens to "they" because "they" are not us. Yes we have some kinship in this society, and yes I would care more about those kins, but caring about one group more than another just because of their citizenship, ethnicity, and afilliation seems wrong.

Imagine that societal roles were completely re-fashioned and redistributed, and that from behind your veil of ignorance you do not know what role you will be reassigned (Rawlsian Veil). You have an equal chance of being born as an American, an Afghan, or any other national citizen. And let's say that you can construct two kinds of world before you are born in it. What world you want? A world in which strong nations care only about their own citizens, or a world in which every single human being are treated fairly, at least with respect to their basic human rights? I think which ever world you choose, will be a step closer to achieving fair justice in this world.

I am grateful that I was not born as a citizen of some countries, in which there are perpetual Civil Wars. A place in which my mother and sister would get raped and I would get conscripted into the army to continue the vicious cycle and the citizens of powerful nations do not give a crap about me because I am not one of them. I think all of us were fortunate enough to be born with a social identity that greatly helped our lives. But just because this inherently unjust system favors us doesn't mean that we have to condone it all the time. And that's why, although I fail miserably, I try to care equally about different tragedies around the world. Because if the fate had it a little differently, I could have been born above the 38th parallel and never have what I have in this world right now. And that thought scares the crap out of me and makes me want to do something about it, although I just sit here and whine.

@ Matt I don't think Eben's kin theory is that radical of an idea. He's challenging us to think critically and be morally consistent on where we draw the line between what life we value and what life we don't.

See Richard Dawkins articulating the same idea with regards to abortion and vegetarianism (Cows are mentioned!):

-- EricaSelig

"that societal roles were completely re-fashioned and redistributed, and that from behind your veil of ignorance you do not know what role you will be reassigned (Rawlsian Veil)."

The problem for me is that (a) we are not behind a veil and (b) most people don't give a crap (this is based on my 18 or so odd years having conversations with others about the blatant injustices of this world and our arbitrary positioning in it). To me, the solution is not convincing everyone they should equally care about all others-- especially because the human condition seeks constructed social identification. While citizenship might be a thin distinction for the purposes of biology, the practical implications of living in a certain country, a shared language, a national narrative, physical boundaries, the creeds, myths, habits, attitudes... add up to a substantial social order to me. In my socially manipulated opinion, the best possibility for justice is that the frameworks of these social constructs (if one agrees that they are an inevitable manifestation of our humanity) move in the direction of valuing the entire human race.

-- NonaFarahnik - 01 Mar 2010

Nona basically most of what I would have said on the issue, albeit, probably more eloquently.

@ Erica: Watched the video. Its OK. Dawkins basically is invoking Sorites' paradox. I accept his argument, that we can't be drawing absolutist bright line rules, but he did not need to pull out evolution to have me on board.

Eben is challenging us to think critically but there is nothing morally consistent about the "we are all kin" theory within the context of this course. I'd suggest it might be cognitively dissonant within a course that spent so much time on legal realism. Of course, I don't actually think for a second that Eben truly believes his "we are all kin theory." I agree with you Erica, he is just trying to "challenge" us. He is staking out the most absolutist position on the issue, because, by doing so it opens our mind and drives us further away from preconceived notions.

How exactly is a lack of ethical difference between humans inconsistent with legal realism? These two things seem perfectly congruent. On the one hand, the law perpetuates arbitrary distinction (property rights, citizenship, etc). On the other hand, the actors themselves are morally indistinguishable - it is only through our lens of perspective that they get imbued with moral significance, or "hats," if you will. The law is what it does. There is no such thing as "Right" in this world, only luck - if we want to understand our surroundings empirically we would do well to acknowledge the actual underlying system. -- DRussellKraft - 01 Mar 2010

@ KayKim? : The "Rawlsian Veil" to me is also utter bullshit. It is a pointless, unexecutable exercise. I will always be me, even when I am pretending not to be me.

(disclosure: I have had the experience of talking to many people who fought recently in the Middle East and have seen multiple disturbing presentations)

To use Eben's tactic: Life in Afghanistan might not be so bad. It's only bad because of who I am, an American. I cannot fathom being an Afghani. Are perpetual Civil Wars bad? I don't know. They seem bad. But then again, they seem bad because I don't have to experience them. Behind the "veil of ignorance" I may reach that conclusion. I may not. It is pointless to think about because it can never happen. Afghans could be quite happy people and we are just getting in the way of ourselves from seeing it.

Once again, I have to know if you're kidding. I actually assume so in this case. If so, what's your point? -- DRussellKraft - 01 Mar 2010

Maybe I'm kidding, maybe I'm not. The point is all about relativity. Every judgement we make is in relative to our cultural values and what we perceive as "happiness" or "justice." But these concepts are not universal, and, we should be wary to make judgements about other people's happiness when we cannot be them. And, if you ever do want to bring these people happiness, you better understand it.

Daniel Gilbert makes a similar argument illustrating the nonsense of the Rawlsian Veil in a book called Stumbling on Happiness. He looks at adult conjoined twins and asks whether if they could separate, would they? From our vantage point, we would think this life were terrible. Indeed, non-conjoined twins thought that a conjoined condition was absolutely miserable. Yet, the conjoined twins answered that they would not separate if they could. I remember a similar event in my own experience when I once saw a person who was paralyzed from the waist down who said it was "the best thing in his life that had ever happened to him." It is all relative--including the concepts of happiness and justice.

I put to you that from our vantage point, we would also think this conjoined life would be lots of other things, many of which aren't subjective. That is to say that from any vantage point, those twins will for example be in different rooms less frequently than they would ceterus paribus as nonconjoined people. In general, make any change and ceterus also wouldn't be paribus. But that's irrelevant. The exercise of the veil is to show that a) There are alternate possible futures, and that b) we probably don't live in the "best" of all possible worlds, even by our own normative lights. It's an attempt to make you ask what we might change to make it better, still by your own subjective conception. -- DRussellKraft - 01 Mar 2010

I have nothing more to say, but that's OK.

But the "Rawlsian Veil" requires some sort of evaluation on happiness and justice. But "all claims of happiness are claims from someone's point of view — from the perspective of a single human being whose unique collection of past experiences serves as a context, a lens, a background for her evaluation of her current experience. As much as the scientist might wish for it, there isn't a view from nowhere." (Gilbert) Nowhere, being the place we would need to be behind the veil of ignorance.

-- MatthewZorn - 01 Mar 2010

I think the boundaries of ethical concern is a really important topic, and I'm finding this discussion fascinating. So far, the focus here has been on national boundaries. Working on climate change, I find the question of temporal boundaries of concern - intergenerational justice - to also be of great interest.

A quick point about the Veil hypo: I think it's basically the Harvard political science department way of formulating the Golden Rule, "Do unto others as you would have them do unto you." Generally speaking most people find this to be a comprehensible and admirable moral precept, and most major religions to my knowledge include it as a central tenet.

Another key point I'd like to add to the current discussion about national boundaries is that I find it a bit ironic that the in the pushback to Eben's comments, the supposedly more deeply felt and "real" national community is being contrasted to "fake," more evanescent familial bonds descending from Mitochondrial Eve.

First, my understanding of Eben's point about mitochondria is that it is a biological reality which can be put to good use in ethical argument. I think it was a just a quick point of political rhetoric, not really an attempt at a general theory of ethics. I don't think the intended point was that, for example, if we discovered Australians had different mitochondria, we would suddenly cease to have ethical obligations to them.

But nationalism - the concept that the boundaries of our familial affection is somehow naturally limited to those within the territories of the same nation-state as us - is to my mind quite implausible as an ethical theory. The nation-state has its origins as a deliberate project by European states to establish more culturally cohesive populations amenable to centralized governing and winning wars. There is nothing natural about it, and certainly there is no inherent link between biological kinship and nationalism.

However, we might be able to make constructive use of nationalism nonetheless, now that we have it. Benedict Anderson's Imagined Communities made the argument, that, inter alia, nationalism can serve to expand one's boundary of concern beyond immediate kin. He worked on Indonesia, and Indonesia is an example of a case where a bunch of essentially separate island communities developed a common national identification in their struggle against their colonial occupiers and cooperated to throw them out.

Elsewhere, and if someone else knows the source for this, I'd be grateful, I read an interesting attempt to explain why the Scandinavian social democracies give more foreign aid than other developed countries. The argument was that the tradition of social democracy there had caused people to expand their circle of concern outside themselves and their family, and that this expansion had continued to encompass people in other countries. Now, I know it's somewhat bad form to cite an argument without knowing the source, but I'm really hoping someone might recognize it and point me to it, and I think it's a thought-provoking hypothesis.

-- DevinMcDougall - 01 Mar 2010

Devin, I don't know if you're referring to something you read on the TWiki, but I recall MikeAbend discussing this in a previous topic. I just spent a while trying to find it for you, but couldn't. I thought it was in the PawningOurLicenses topic, but didn't find it in the history. Maybe you'll have more success!

-- JessicaHallett - 02 Mar 2010

Jessica - thanks so much for your efforts! The empirical research about Scandinavia is actually something that came up in a class discussion in undergrad - I probably should have made that more clear.

-- DevinMcDougall - 03 Mar 2010

About nationalism: Humans derived evolutionary benefit from developing cohesive group structures that guarded resources, supported their members out of reciprocal self-interest, and allowed for specialization. Those tribes that developed very intense concern for other members were more effective at this. This same degree of empathy couldn't extend to all humans, as they were members of competing tribes. I always thought Dunbar’s number was interesting- organizations are most optimal at 150-300 persons or less, anything above that and people begin to lose track of relationships and require increasingly complex systems of laws and rules to keep them in control.

I think the most effective nationalistic systems are best at creating a slightly idealized, slightly personalized “proxy figure” that people come to empathize with. We create that figure’s identity, define the contours of the group, and then automatically apply that identity to members of our group who we don’t know personally to create a bond that wouldn’t normally exist outside of the 150-300 people in our tribe/small town/city block. Of course, there are many more identities and groups in our society that compete with the nationalist figure, religious, racial, geographic, ethnic, political. Part of the success of the American system relative to others has been slowly minimizing the effect of those other identities so that they don’t continue to cause friction, but there are still cultures in our own society who don’t really identify with the American figure and operate largely according to their own rules. At certain times, we've felt it necessary to make moral judgments about these cultures, for example during desegregation or in dealing with inner-city gangs, and regulate their rules and norms above their protests. It wasn't too long ago that the kinship bond between someone from New York and someone from South Carolina by virtue of being American was almost non-existent. I see no reason that the current kinship bond between someone from America and someone from Afghanistan by virtue of being human can't similarly evolve.

Besides, I don't know if Eben was necessarily saying we needed to eliminate kinship ties or see the nameless Afghan child in the same way as we see members of our close family, just that we owe them enough of a kinship tie not to bomb their villages with robot drones.

-- JonathanWaisnor - 02 Mar 2010

Jonathan, I think you brought up a great point about our ability to construct artificial identities to create bonds between people who otherwise might not care about one another – especially where you note the utility in doing so. The only question I have is: Can those identities actually evolve to the point where we create bonds between all other human beings? As I believe Kay correctly pointed out, we have a tendency to create identities so as to separate one another into categories of “we” and “they.” Similarly, I don’t think it’s too much of a stretch to say that the kinship bonds created among the “we” (even the artificial ones) are often dependant upon those “we” being able to contrast themselves to a “they” (i.e. any sense of kinship retains some idea of exclusivity). I hope that I am wrong and that we can expand our sense of kinship far enough to respect all human beings – but given our as track record so far, I remain somewhat skeptical.

-- TaylorMcGowan - 02 Mar 2010


Recognizing and negating the artificial constraints that separate us is certainly possible. At the very at least, if we can't completely break from the more negative aspects of this postmodern society we find ourselves in, we should strive for it. I personally believe that art has the capacity to do this, that is, to jolt people into higher awareness, destroy certain values and create others in their place.

Thinkers throughout the ages have written on this topic, Nietzsche's theory of eternal recurrence and Adorno's ideas on determinate negation come to mind.

@ Matt

Mr Dawkins is all about genetics! But his ethical theories, or the ethical implications latent in his scientific works, really do revolve around biology. In The Selfish Gene, he created a whole new paradigm about classifying kinship, that is, he called humans and animals all "gene machines" and explores the biological implications therein. It's a really great book if you get a chance to read it, what with all our free time. wink

-- EricaSelig - 03 Mar 2010

Martha Nussbaum has a great essay arguing for a cosmopolitan approach to morality. I recommend it highly to anyone interested in these issues. It's concise, vividly written, and makes a compelling case for cosmopolitanism. It's available here:

-- DevinMcDougall - 10 Mar 2010


Discussion moved from above:


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r28 - 10 Mar 2010 - 14:56:39 - DevinMcDougall
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