Political Theory/Political Philosophy

Bill Kristol and Gary Schmitt in the WaPo:

   … That is why the president uniquely swears an oath – prescribed in the Constitution – to preserve, protect and defend the Constitution. Implicit in that oath is the Founders’ recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.

Josh Marshall has thoughts on possible difficulties with this notion that ‘the power to set aside laws is "inherent in the president."’

But without waiting for the dust to settle we’ll just step back and declare: so it’s settled, Carl Schmitt’s Political Theology is the late-breaking, runaway dark-horse winner stocking-stuffer political book of the season. And we hereby open a new front in the war on Christmas, as it is clear the President, like Santa, doesn’t have the time to go to to some damn judge every time he needs to know whether someone is naughty or nice.

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A.J. Julius posted an earlier version of this paper on his website a few months ago, and I’ve only just got around to blogging it. It is a crisp and powerful critique of Nagel’s recent defence of the claim that the scope of justice is limited by national boundaries (free content). Julius makes the same foundational assumptions as Nagel and shows, elegantly, that the boundaries of justice are nevertheless….well, global. I’m a big fan of Julius’s work, so I might be a bit baised, but I think its terrific. Forthcoming in Philosophy and Public Affairs, presumably in the issue after the one that’s just been announced, so get it while its hot, as Larry Solum likes to say.

I’ve been meaning to post on the issue of abortion and the European Union. Not to discuss the substantive merits of the case — I’m pro-choice, since you ask — but, rather, to get some reactions. The Portuguese constitutional court has now decided to “block a referendum”:http://news.bbc.co.uk/2/hi/europe/4387406.stm to liberalize the law until September 2006. Naturally, I hope that the referendum, when it is eventually held, produces a majority in favour of reform. But I got to thinking about how outrageous it would be if the EU centrally, or the ECHR, decided what the law in Portugal should be rather than the Portuguese people themselves. It seems, though, that “not everyone agrees with me”:http://217.145.4.56/ind/news.asp?newsitemid=23897 :

bq. Finding ways to force countries such as Ireland, Portugal and Malta to liberalise their abortion laws was the focus of a meeting of 17 members of the European Parliament and representatives of various NGOs who gathered in Brussels on 18 October, LifeSiteNews reported.

bq. At a conference entitled, Abortion – Making it a right for all women in the EU, attendees heard testimony from abortion advocates from countries with restrictive abortion laws.

bq. Held at the European Parliament building, participants strategised about ways to make a right to abortion mandatory for all member states of the European Union. They discussed ways of arguing that guaranteeing the right to abortion falls under the European Union’s mandate because it is a human rights and public health issue.

The EU isn’t structually similar to the US (despite what some commenters at CT appear to believe), but there are obvious parallels here to the Roe v. Wade issue. Personally, I think that the right of a demos to decide these things after intelligent public debate should not be sacrificed lightly in favour of empowering a bunch of (foreign) judges, just to get the substantive result one likes. I would also imagine that if the EU starts to impose a view then that will have very damaging effects on the cohesion of the Union. But I’d be interested to get the views of others.

Eugene Volokh strikes a blow against the “judicial activism=judgifying I don’t like” equation. The 9th Circuit determined that “there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children.” (The case involves a questionnaire administered to 7-11 year-old public school students in California whose parents had signed a permission slip. Among the questions were a number of a sexual nature. I agree with the plaintiffs that the permission slip was misleading, and many would regard the questions as inappropriate, and someone should get a slap from the human subjects board at their university. However, this isn’t a reason to divine new rights in the Constitution…)

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I’ve just picked up Brian Barry’s new book, Why Social Justice Matters, and despite having very high expectations based on the man’s track record, I’m not in the least disappointed so far. Barry’s work always combines extraordinary clarity and patience in argument with enviable command of the relevant chunks of social science. ‘Why Social Justice Matters’ is no exception – the chapters on the effects of growing inequality in the US and the UK on the health and education of the worst-off are fantastically useful distillations of what I presume are massive literatures. I shall hope to blog about some of Barry’s ideas about responsibility when I’ve mulled them over properly.

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Locke’s subtitle to his Two Treatises of Government explains the purpose of each of the two essays: “In the Former, the False Principles and Foundation of Sir Robert Filmer, and His Followers, are Detected and Overthrown. The Latter is an Essay Concerning the True Original, Extent, and End of Civil-Government.” The Second Treatise is by far the more widely read these days. I only recently read the First, and it was not nearly as painful as I feared. In fact, much of it was downright amusing. Locke sets his sights squarely on Filmer’s divine right theory, according to which God gave Adam “Royal authority” which was passed down from father to son until … well, that part’s a little unclear. Anyway, Locke is pretty merciless.

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I happened to be reading a paper by a friend today and came across a lovely passage by “William Morris”:http://en.wikipedia.org/wiki/William_morris on the principle of distribution that would obtain in a socialist society. The passage is from Morris’s “What Socialists Want”:http://www.marxists.org/archive/morris/works/tmp/want.htm and I found it interesting in the light of the arguments that go on today among egalitarian liberal political philosophers. Thus spake Morris:

bq. when a family that is comfortably-off sit down to a leg of mutton how do they act? do they bring in a pair of scales and weigh out to each one his share of the victuals? No that is done in a prison, but not in a family: in a family everybody has what he needs and no one grudges it: Mary has one slice, Jack has two, and Bill has four: but Mary and Jack don’t feel wronged, since they have had as much as they wanted: and the reason for this is that enough has been provided, and that the members of the family trust one another. My friends it is for you to choose whether you will live in a prison or a family: we Socialists beg you to choose the latter.

The important thing for Morris is that everyone have enough, and that everyone trusts one another sufficiently to be assured that others are not taking more than they need. And he contrasts this with an attitude of (suspicious) calculation. I’m not sure whether Morris is enunciating a principle of justice here, or whether he would say that justice is inherently calculative and that these are circumstances of abundance where the watchful attitude of strict justice no longer applies. But if (and it’s a big if) this is taken as a principle of justice, then it is notable that he isn’t endorsing a principle of strict equality, but rather one of sufficiency. Indeed this contrast is even clearer towards the beginning of the text where Morris writes:

bq. So you see whatever inequality I admit among people, I claim this equality – that everybody should have full enough food, clothes, and housing, and full enough leisure, pleasure, and education; and that everybody should have a certainty of these necessaries: in this case we should be equal as Socialists use the word ….

Again, a principle of sufficiency and the suggestion of the dimensions of human existence in which we should have sufficient that prefigures some of the lists of essential capabilites that Martha Nussbaum enumerates in various places.

How weird that you could write these two sentences: “But anti-elitism and conservatism are not and never have been the same thing. And I do think this will be more obvious in the months and years to come.”

I see via “one of John H’s other incarnations”:http://www.thevalve.org/go/valve/article/conservatives_in_academe/ that Mark Bauerlein is under the charming misconception that it’s a bad idea for aspiring sociologists to work on “the debilitating effects of the European welfare state” if they want to get their dissertations accepted. It’s always a good idea to, like, familiarize yourself with debates among “prominent sociologists”:http://www.mpi-fg-koeln.mpg.de/pu/workpap/wp05-2/wp05-2.html and other “social scientists”:http://www.amazon.co.uk/exec/obidos/ASIN/0521613167/qid=1129588238/sr=1-1/ref=sr_1_8_1/202-1419967-7463003 before making these grand pronouncements. But at least Bauerlein’s error gives me an excuse to link to this “work in progress”:http://www.courses.fas.harvard.edu/~ss10/Downloads/SJ.doc by Margarita Estevez-Abe and Glyn Morgan, which argues against the European welfare state because of its institutional inflexibilities. Morgan and Estevez-Abe say, correctly, that certain European welfare states have some very dubious features, perpetuating gender inequality among other things. They argue instead for a normative standard based on a capacity for a wide-ranging individuality, which in turn requires a strong degree of _institutional flexibility_. That is, institutions should be able to accommodate a wide variety of lifestyle and career choices, rather than assuming, say, that women should confine themselves to the home and motherhood. [click to continue…]

The excellent “Equality Exchange”:http://mora.rente.nhh.no/projects/EqualityExchange/ — a repository for papers about the theory and practice of equality from philosophers, political scientists, sociologists, lawyers and economists — has moved. Adjust your bookmarks for the new site, and take the opportunity to have a look around one of the most valuable resources for political theorists and philosophers.

Reading Ronald Dworkin’s chapter “Political Equality” from “Sovereign Virtue”:http://www.amazon.com/exec/obidos/ASIN/0674008103/junius-20 and James Surowiecki’s “The Wisdom of Crowds”:http://www.amazon.com/exec/obidos/ASIN/0385503865/junius-20 back to back was a rather odd experience. I first read Dworkin as saying something like the following.

bq. Leaving things up to the electors is all very well for issues where what the right answer is actually depends on what people want. But lots of issues, especially one’s of basic justice, aren’t like that. There’s not special reason to think that ordinary people are much good at those questions, so better to put them in the hands of people like me the justices of the US Supreme Court.

Aha! I thought, after reading Surowiecki. Maybe Dworkin goes too quickly in assuming that a panel of experts is better than the electorate is at deciding such questions. Let’s go back and see what he says. But apart from a bit of handwaving in the direction of Condorcet (inconclusive according to Dworkin, and mentioned by name by neither D nor S) there isn’t really any argument. And Dworkin’s positive claims end up looking really elusive. Like this:

bq. For some matters where the right answer is independent of what citizens want it might , sometimes be better to have judges decide (though “it would be outrageous to suggest that only lawyers and moral philosophers should be allowed a vote on choice-insensitive matters” (p.207). And, by the way, judicial review doesn’t impugn equality of the vote “because it is a form of districting” (p. 209).

So I’d be grateful if someone out there can formulate a nice crisp thesis about these matters that I can pin on Dworkin with confidence and which doesn’t contain so many qualifications and get-outs as to be nearly worthless. I also wonder, insofar as my first attempt at a summary is an accurate rendition of what Dworkin really thinks, whether the impending Republican majority on the Supreme Court will give him cause to regret and retract his view.

The Journal of Ethics and Social Philosophy, the online journal run out of USC Law School which I blogged about back in the spring, has just introduced an updates service — sign up in the left hand corner. It has now published 6 articles, with one more coming in the next few days. Andrei Marmor tells me it has an acceptance rate of 1:11, and gets about 600 downloads per month.

Chris Brooke of “the Virtual Stoa has been waiting”:http://users.ox.ac.uk/%7Emagd1368/weblog/2005_10_01_archive.html#112895907444293364 for the “Brick Testament”:http://www.thebricktestament.com/ to get round to its Lego re-enactment of a key Biblical episode for Rousseau scholars, the Levite of Ephraim, a tale of gang rape, murder and dismemberment, and the occasion for one of JJR’s most obscure scribblings. Follow the links from the Stoa.

I’m just back from Germany where I’ve been to a very interesting interdisciplinary workshop at the University of Bremen ‘s Sonderforschungsbereich “Staatlichkeit im Wandel”:http://www.staatlichkeit.uni-bremen.de/ on Trade Governance, Democracy and Inequality. As usual in such cases, the bringing together of philosophers and practitioners was both stimulating and revealing of how little we know about one another. Starting my own, basically normative, paper, I asserted that a central purpose of trade rules should be to promote justice. I was informed that “justice” was one word that would never pass the lips of a WTO negotiator. Which, doesn’t show, of course, either that I’m wrong about what should happen or that concerns about justice aren’t lurking in the shadows somewhere. But it suggests a startling disconnect between the public rhetoric about global inequality and the concerns at the negotiating table.