Welcome to the Jurisdynamics Network Orbiter

Inspired by PlanetPlanet's feed reader and aggregator and by Six Apart's Project Comet initiative, the Jurisdynamics Network presents the Jurisdynamics Network Orbiter. The Orbiter aggregates the latest posts from all of the Jurisdynamics Network's weblogs. The posts are presented in reverse chronological order so that visitors can see the freshest discussions of law in the context of societal and technological change. The Orbiter even has its own RSS feed, which you are invited to download by clicking here:  .  We hope that you enjoy the Orbiter and will visit often.


February 9, 7:53 AM   /   Ratio Juris   /   Andy Warhol: The Artist as Philosopher or Businessman?

“My assertion at one point that Warhol was closest to a philosophical genius of any twentieth-century artist very nearly cost me Robert[] [Motherwell’s] friendship, and he pointed out to me that Warhol rarely said more in front of a painting than ‘Wow.’ But that of course is just my point: the philosophy was in and through the work, and not in what was said in front of the work. There is in my view a great deal in Hegel’s belief that art and philosophy are deeply affined—that they are, in his heavy idiom, two moments of Absolute Spirit. The wonder of Warhol is that he did philosophy as art, in the sense that he defined false boundaries by crossing them. Since no philosopher of art in 1964 recognized the kind of problems Warhol raised, he could not have had a philosophical language in which to explain it. So, perhaps, ‘Wow.’ [….] Since at least Warhol’s exhibition of Brillo (and other) cartons at the Stable Gallery on East 74th Street in Manhattan in the spring of 1964, I have felt him to possess a philosophical intelligence of an intoxicatingly high order. He could not touch anything without at the same time touching the very boundaries of thought, at the very least thought about art. [….] Indeed, I believe it was among Warhol’s chief contributions to the history of art that he brought artistic practice to a level of philosophical self-consciousness never before attained.”—Arthur C. Danto

“For Warhol all art is commercial, which says more about the power of commerce than it does about the power of art. It took little more than half a century to undo Kandinsky’s idea that art was the last bastion of spirituality against materialism. [….] The artist was once thought of as sacred—he had a spark of God’s creativity in him—but Warhol’s artist is a businessman, profaning everything sacred and creative by putting a price on it, as Marx said. [….] Warhol’s art exploits the aura of glamor that surrounds material and social success, ignoring its existential costs. His art lacks existential depth; it is a social system with no existential resonance. ‘If you want to know all about Andy Warhol, just look at the surface: of my paintings and films and me, and there I am. There’s nothing behind it.’ This consumate statesman of postmodern nihilism suggests the reason that art has lost faith in itself: it has lost emotional and existential depth, and sees no reason to have any. […..] Some interpreters have thought Warhol was deliberately cynical, or at least ironical, but I think his seductive equation of money and art—not to say permanent confusion of their terms—was dead serious and honest. It is ruthlessly cool, in a world where ‘coolness’ is the aesthetic…. Cool is the way to be both indifferent to commerce and commercial at the same time.”—Donald Kuspit

Images: By Lucian Freud and Andy Warhol respectively.



February 9, 1:36 AM   /   Ratio Juris   /   The End of Art

The following is a synoptic introduction to Donald Kuspit’s The End of Art (Cambridge, UK: Cambridge University Pressm, 2004).

This book provides a brilliant and devastating diagnosis of what ails post-aesthetic or postmodern art: its failure to facilitate an aesthetic contemplative alternative to the “ugliness and injustice” of our social world (failing to realize that beauty is the ‘ultimate protest’ against ugliness); its constitutional inability to provide a “psychic space” that permits or encourages autonomy (wherein the ethical is inherent in aesthetics and beauty); its penchant for the tragicomic or farcical wherein the work of art, constructed by the would-be celebrity-artist, is merely a “pyschosocial construction defined by its institutional identity, entertainment value, and commercial panache.”

Kuspit defines the “post-aesthetic” character of art as having abandoned the “heroic idea of the human potential of aesthetic experience,” which includes the “further[ing] [of] personal autonomy and critical freedom.” Postmodern “art” has become “consummately commercial,” causing the artist, the public, the patron and even the connoisseur to confuse or conflate commercial values with the spiritual values of art: “When commodity identity overtakes and subsumes aesthetic identity, so that an expensive work is uncritically accorded aesthetic significance, not to say spiritual value—they become everyday artifacts.” Postmodern art’s commercial value is linked to its role as entertainment: for the wealthy, who can afford its products, and the hoi polloi, whose consumption is passive, collective witness to the commercial spectacle and permitted vicarious association with the rich and famous aesthetes by way of “the museum,” an institution that serves as “an intellectual sarcophagus, as much as a physical museum.” Postmodern artists hanker after “an audience that will make them popular, giving them the celebrity and charisma they believe they are entitled to as artists.” Kuspit dares his readers to show him “the contemporary artist who would prefer to live from hand to mouth rather than fall into the hands of an art dealer.”

Kuspit laments “protest art” and art that is ostensibly “moral,” enlisting art in the service of “meliorative criticism and social advocacy” because it tends to “regard[] form as a kind of scaffolding for subject matter from which it can be proclaimed,” and “the artist tries to bully the spectator into believing what the artist believes,” all the while leaving matter more or less “aesthetically untransformed” and evidencing a “certain failure of creativity.” Protest artists (producers of what others call ‘agitprop’),

“fail to realize that beauty is the ultimate protest against ugliness, which why the absence of beauty in their works shows that they are not critical. They are in fact creative failures. Indeed, the inability to imagine beauty is a sign of the creative inadequacy of post-aesthetic art.”

By contrast, “traditional are reveals the qualities—dignity and empathy especially—that make us human. It is morally concerned, and often shows the moral siege in an immoral world.”

Kuspit’s stinging lament does not end in despair:

“The anti-aesthete, anti-imaginative, anti-unconscious seem to have destroyed the possibility of making an aesthetic masterpiece, but there are still artists who believe in the imaginative refinement, under the auspices of the unconscious, of raw social and physical material into aesthetically transcendent art.”

Image: By Avigdor Arikha who, together with Lucian Freud, Kuspit christens “Deans of the New Old Master artists.”



February 7, 10:44 PM   /   Ratio Juris   /   Yoga: A Basic Philosophical Introduction

[subscript diacritic dots missing]

Yoga: from a verbal root, “yuj,” which is often taken to mean “to yoke” or “to unite” (with God: here, as īśvara, an ‘impersonal, acosmic, detached presence whose inherent contentlessness can only show itself as what it is not’), however, as Gerald Larson explains, “[B]oth Vyāsa and Vācaspatimiśra [point] out that Yoga in the context of Pātañjala Yoga does not mean ‘yuj’ in the sense of ‘yoke’ or ‘join,’ but rather ‘yuj’ in the sense of samādhi or concentration [these being the two possible associations of the verbal root ‘yuj’].” It entails unswerving commitment and concentration as a meditative discipline that harnesses bodily and psychic energy on behalf of techniques designed to still the mind (the fluctuations of ‘mind-stuff’) and finely focus the mental powers of discrimination and concentration. It is a combination of physiological, psychological, and spiritual methods fashioned to alter routine states of consciousness or awareness.

Sometimes the term “yoga” is used in a general and loose sense to mean something like “disciplined thought” or meditative concentration, in which case it can refer to “disciplined work in any number of areas, including law, medicine, art, ritual, language, and so forth” (Larson). Our focus here is on the first and more technical meaning of Yoga as “that specific system of thought (śāstra) that has for its focus the analysis, understanding and cultivation of those altered states of awareness that lead one to the experience of spiritual liberation. [here: kaivalya, elsewhere: moksa]” (Larson).

Patañjali’s Yoga system is one of the six āstika (orthodox) darśanas,* hence a distinct philosophical school and a spiritual praxis, as elaborated in his Yoga Sūtra (3rd to 4th century CE; the Sūtra, usually read together with its indispensable commentary, Vyāsa’s Bhāsya), is also known as the “Eight-Limbed Yoga” (astānga-yoga), only one limb of which, the third and “outer member” (āsana), is found in contemporary “YMCA” and “classified ads” yoga (there are all-too-few exceptions to this generalization). In other words, in most contexts of contemporary public discourse, the word “yoga” is used in reductive reference to āsanas, although the two terms are not interchangeable. We might describe this as emblematic of the commodification and commercialization of religious praxis in conjunction with New Age orientalist nonsense. The long-term goal of yoga is asamprajñāta-samādhi, a non-conceptual awareness beyond all thought, attribute and description (nirvikalpa). As such a state of awareness becomes more than intermittent, it is capable of eliminating samskāras (karmic predispositions, i.e., it is karmically ‘seedless’). Classical Yoga largely assumed or took over Sāmkhya metaphysics: as Larson reminds us, Pātañjala Yoga “as a philosophical tradition is unintelligible without the Sāmkhya ontology and epistemology,” sharing many of the latter’s basic philosophical presuppositions and assumptions, but most importantly, the aim of disassociating pure consciousness from the mind-body complex (the latter a product of prakrti). Unlike Sāmkhya, however, Yoga introduces a deity essential to contemplation (īśvara-pranidhāna) and a model of the yogi’s ultimate goal, for “The Lord is a special [kind of] purusa, untouched by hindrances, karma, its fruition, and latent-deposits [of karmic actions]” (Yoga Sūtra 1.24). This is a peculiar deity indeed, for the Lord does not create the universe, remaining an utterly transcendent deity never in touch with the world (thus completely set apart from the manifestations of prakrti). Here, the deity appears to have a wholly functional spiritual and psychological rationale, dispensable and utterly transcended with asamprajñāta-samādhi. While ultimately on the order of an ‘illusion’ therefore, this deity is viewed as no less necessary until such time as the devotee has reached a certain pinnacle of meditative attainment or realization, a formulation not unlike its counterpart role in Advaita Vedānta.

Although Patañjali’s Yoga is both a darśana and an ascetic or meditative practice, we can distinguish Yoga as a classical philosophical system and school from Yoga as a spiritual tradition of “experimental or experiential practice (whether ritualistic, devotional, meditative, therapeutic, alchemical or magical)” (Larson), for there are many traditions of Yoga “that run parallel to philosophical Yoga from the earliest centuries of the Common Era through the medieval and modern periods,” only two of which we’ll mention here: the Yoga of the Bhagavad Gītā and Moksadharma portion of the epic Mahābhārata (e.g., bhakti-, karma-, and jñāna-yoga), and the yoga praxis (Kundalinī yoga) found in the monistic Śaivism of Abhinavagupta and Ksemarāja. (In a future post, we’ll introduce the former three yogas by way of a prelude to a discussion of Gandhi’s preference for karma-yoga). Alas, among the later, “popular extensions” of these parallel traditions one finds “peripheral” and “tangential” sub-traditions, writes Larson, “which sometimes have degenerated into pointless superstition and aberrant psychological behavior. Unfortunately, some of this peripheral and tangential material has found its way into New Age spiritual practices. New Age bookshelves continue to be filled with the most incredible nonsense that passes itself off as Yoga, ranging from so-called Yoga massage books to au courant techniques for new and improved tantric orgasms.” Both New Age “Yoga” and commodified gymnastic āsanas are, to put it feebly, a far cry from Patañjali’s Yoga philosophy and praxis or the yogas of the Bhagavad Gītā. Somewhat distinct from either of these contemporary expressions of Yoga, what we’ll term “hybrid-Yoga,” is well represented in the following article from the Los Angeles Times, “Bending yoga to fit their worship needs:”

“Christian pop music played quietly in the background as instructor Bryan Brock led a recent yoga class at the nondenominational Church at Rocky Peak in Chatsworth. Incorporating prayer and readings from the Bible, Brock urged his class of about 20 students to find strength in their connection to their creator through yoga’s deep, controlled breathing. ‘The goal of Christian yoga is to open ourselves up to God,’ he said. ‘It allows us to blur the line between the physical and the spiritual.’ The instructor then recited the Lord’s Prayer while his students moved slowly through a series of postures known as the sun salutation. Such hybrid classes, which combine yoga practice with elements of Christianity or Judaism, appear to be growing in popularity across Southern California and elsewhere. Some Christians call their versions of the discipline holy yoga or Yahweh yoga and some teachers urge participants to ‘breathe down Jesus.’ Jewish yogis, in turn, have developed—and in some cases, even trademarked—Torah yoga, Kabbalah yoga and aleph bet yoga, applying Eastern meditative movements to Jewish prayer and study.” [….]

Among its philosophical virtues, the Yoga tradition of Patañjali spells out in some detail the essentials of karma theory: paraphrasing Karl Potter’s concise summary, an act (karman) performed with purposive intent and desire or passion creates either a meritorious or unmeritorious karmic residue depending on the quality of the act (including its motivation). This karmic residue includes dispositional tendencies (samskāra) of various kinds, including two kinds of traces (vāsanās), one of which, when activated, produces certain mental and emotional afflictions (including ignorance, egoism, attachment) (kleśas). The kleśas color or characterize the thinking, feeling, and actions of one engaged in purposive activity and, in turn, causally lead to the production of yet more karmic residue, assuring the person’s continued bondage. At death, a person’s unactivated karmic residues, including his vāsanās, gather together within that individual’s citta (here, and loosely, ‘mind,’ as intellect, the ego and senses). Citta is the term for the bodily and mental evolutes or aspects of prakrti (material substance, from grosser to finer), made up of the three gunas (sattva, tamas, and rajas) whose fluctuations affect the thinking, willing, and feeling of individual selves. The citta associated with a jīva of the just-deceased body immediately passes on to a new body-mind configuration (assuming human rebirth here)—presumably a fetus—and accords the new body a citta appropriate to it. The karmic residues determine the individuation of the body-mind configuration, ceteris paribus, the length of its life, and the affective tone (bhoga) of the experiences the person will have (i.e., whether pleasurable or painful). When the person acts (as a purposive agent), karmic residues directly affect the tone of experience: ‘good’ residues producing pleasurable experiences, “bad” residues producing painful experiences. It is the individual’s response or reaction to those experiences (e.g., attached or non-attached) that determine whether or not she will create further karmic residues and associated vāsanās. According to the Gītā (cf. XII.12, 13-20; XVII.12), for example, it is “non-attachment” to or renunciation of the “fruits” of one’s actions that forestalls further karmic production. Such non-attachment or renunciation may require, as in Patañjali’s Yoga system, attainment of the highest state of meditative concentration (samādhi), an enduring state of non-conceptual awareness of reality (‘pure witness-consciousness’). (Please see Potter’s essay, ‘The Karma Theory and Its Interpretation in Some Indian Philosophical Systems,’ in O’Flaherty, ed., 1980: 241-267)

* The Wikipedia entry on “Hindu philosophy” is also fairly reliable.

References and Further Reading:
[A slightly different version of this post was first written for RelgiousLeftLaw.com on May 9, 2010.)



February 6, 2:40 PM   /   Agricultural Law   /   Food Sovereignty Movement Spawns Struggle for Local Control

Recent events in El Dorado County, California highlight emerging tensions between state and local laws related to agriculture. These tensions arise in the context of a burgeoning food sovereignty movement, as consumers seek more choices about what they eat and its provenance. The Sacramento Bee reported a few weeks ago that the El Dorado County Board of Supervisors voted to support "the grass-roots (and grass-fed) agriculture revolution," and--in particular--local farmers who are bucking state regulations by selling directly to consumers. At their January 24, 2012, meeting, the Board of Supervisors lent verbal support to a "Local Food and Community Self-Governance" ordinance.


The ordinance is being pushed by Patty Chelseth, a smalltime dairy woman (we're talking two cows) who wants to provide raw milk to customers. Chelseth started selling shares in her cows because California law permits a cow's owner to drink the cow's milk filtered, but unpasteurized. It's her attempt to workaround the prohibition on selling raw milk.
This July, 2011, Sac Bee story provides some background for the Supervisors' decision. It tells of Chelseth's initial dust up with the state over a cease-and-desist letter the California Department of Agriculture sent her regarding her sales of shares of her cows. That July story included the language of Chelseth's proposed ordinance. As journalist Carlos Alcala observes, it reads something like a Declaration of Independence:
We the People of the County of El Dorado, California, have the right to produce, process, sell, purchase and consume local foods, thus promoting self-reliance, the preservation of family farms and local food traditions.
Indeed, "freedom v. oppression" was a theme among the 20 or so pro-ordinance speakers at the meeting. According to the Bee, another hundred or so supporters overflowed from the meeting room.
While El Dorado County Supervisors did not adopt that ordinance at their January meeting, but they did appoint two members to draft a resolution in support of local food governance. This watered-down action came in spite of highly supportive comments one supervisor made about local agriculture and his own family's involvement in it. Supervisor Ray Nutting is quoted:

I am personally appalled that they will come onto my ranch and tell me I can't share my cow or I can't share my chickens.
After some references to his own "homesteading, cow-milking ... and chicken-decapitating grandmother," Nutting concluded: "Whatever we need to do, I'm in full support." El Dorado County Sheriff John D'Agostini commented that his office is "not going to be the milk police" and voiced support for the ordinance.
Despite widespread sentiment in favor of small farmers and direct sales, the Board of Supervisors was surely influenced to take only tepid action by the county's lawyer, who advised that Chelseth's proposed ordinance runs afoul of the California Constitution, which reserves for the state the prerogative to regulate food for public safety.
Indeed, state regulators say they "won't kowtow to the movement when it comes to changing policy." A California Dept. of Agriculture spokesperson said the Department would be guided by the state legislature. He added that the only proposed changes in the pipeline are aimed at achieving greater clarity regarding the regulation of very small dairy herds. The spokesperson did not indicate whether such changes would affect producers like Chelseth, who seek to sell raw mailk directly to consumers.
Lest this state-local power struggle appear to be an isolated event, I note that both Bee stories indicate that similar tensions are playing out elsewhere, both within California and across the nation. An official from the Sonoma Valley (California) Grange who attended the El Dorado County meeting commented that the California State Grange supports such ordinances and is "searching for an alpha dog to lead the way, and we're encouraging your county to be the leader."
The earlier Bee story compares what is happening in El Dorado County to a similar movement in Maine. There, the state agriculture agency has told municipalities that their food-related ordinances do not supplant state laws.
Shermain Hardesty of the UC Davis Small Farms program thinks some middle ground may be possible. She is researching different standards that would ensure the safety of food that is not widely distributed and sees small meat-processing plants as one solution. But even Hardesty says "raw milk is a different question," presumably because of serious concerns about its safety. Get more information here, from Real Raw Milk Facts.
El Dorado County lies due east of Sacramento County, and it stretches many miles from exurban El Dorado Hills, a posh planned community abutting Sacramento County, though the Mother Lode and historic gold rush towns and hundreds of acres of El Dorado National Forest, to Lake Tahoe. It is part of the Sacramento-Roseville Metropolitan Area, but it is relatively sparsely populated as metro counties go, at just 106 persons per square mile.
I travel to El Dorado County frequently, in part because I particularly enjoy its viticultural offerings. More on that, perhaps, in another post. Photos are of some farm scenes in El Dorado County, including my favorite farm stand, run by a Hmong family, on Pleasant Valley Road. Of course, regulations around selling vegetables are far less strict than those regarding meat and milk products. The sign proclaiming availability of eggs was taken yesterday, also on Pleasant Valley Road, which is south of Placerville, the county seat. The top photo, from a farm on Bucks Bar Road, illustrates a work-around for selling directly to the consumer--selling the entire live cow! El Dorado County Farm Trails signs are numerous, with many of them designating the county's dozens of wineries and hundreds of acres of wine grapes.

Cross-posted to Legal Ruralism.



February 4, 9:01 PM   /   Ratio Juris   /   Dreams and Dreaming: A Select Bibliography

Le Rêve (The Dream) is a 1932 oil painting by Pablo Picasso.

The select bibliography for “dreams and dreaming” is here. What follows is material on dreams and dreaming from several civilizations, cultures, and worldviews, as well as reflection on same from sundry writers (academic and otherwise), psychologists, and philosophers. The hope is that these nuggets of analysis and insight will grant one a taste (rasa) of the wonderful world of dreams.

“[D]reams are meaningful and dreaming a purposeful activity.”—Sudhir Kakar

“Dreams…are communications with the soma, psyche, polis, or cosmos of the dreamer.”—Sudhir Kakar

“Thanks mainly to Freud, the dream has been overwhelmingly in the hands of the psychologists. We cannot blame the psychologists for this, because they have proper business with the dream. But few humanist scholars have bothered to look directly at the dream as a subjective experience that has, however delusively, aroused in us all a sense of being alive in an unusual way. One scholar will write about Kafka and the dream, another about Mann or Strindberg and the dream, but few write about the dream itself. The average person is so used to dreaming that dreaming becomes as unremarkable as shaving or daydreaming on the bus. Yet for several hours each night, most of us invent and populate an outrageous world into which we are involuntarily projected to take our chances like the hero of a novel or a film. This is a staggering fact about human consciousness, this other reality….”—Bernard O. States

“Everyone approaches the subject, first and foremost, through their own personal dreaming. This is true for researchers and clinicians as well.”—Kelly Bulkeley

The most widely accepted facts about ordinary dreams are as follows: “(1) Nearly all humans remember at least some dreams. (2) A very small number of people report never dreaming. (3) Ordinary dreams are mostly visual and auditory, with some tactile sensations and very little smell or taste. (4) The whole range of emotions can appear in dreams but many dreams have no emotional tone at all. (5) High-level mental abilities for rational thought, decision-making, and self-reflection are active and normally functional in some dreams, but not in others. (6) Most dreams contain one or more characters other than the dreamer. (7) Many dreams involve speaking, listening and common forms of social interaction.”—Kelly Bulkeley

The following have been claimed as additional patterns in the form and content of ordinary dreams: “(1) Children dream more often of animals than adults do. (2) Women tend to remember more dreams than men do. (3) Men’s dreams tend to be more aggressive and sexual than women’s dreams. (4) Men dream more often of male characters than female characters, while women tend to dream evenly about male and female characters. (5) Falling dreams are much more common than flying dreams. (6) Some dreams include explicit reference to cultural symbols and metaphors. (7) The primary emotional concerns and activities of the waking life are accurately reflected in the frequencies of various elements of the dream content (the continuity hypothesis).”—Kelly Bulkeley

After Jung, we might make a distinction between “little” and “big” dreams. With regard to the latter: “(1) Many cultures do make a general distinction between significant and insignificant dreams, after casting it in religious terms (e.g., divine dream visions and merely human dreams). (2) Nightmares are an especially widespread form of highly memorable dreaming, with a high prevalence among the general population of two primal themes: being chased or attacked by another character (especially animals) and falling or losing control of one’s body (e.g., feeling paralyzed). (3) At the other end of the emotional spectrum, some highly memorable dreams involve feelings of intense sexual pleasure that carry over into physiological arousal on waking (wet dreams). (4) Among the most emotionally positive big dreams are those involving seemingly magical phenomena (e.g., flying, dead people appearing alive again), with qualities of unusually intense realism. (5) Other factors associated with big dreams include recurrence, aesthetics, bizarreness, temporality, and lucidity.”—Kelly Bulkeley

“At the farthest edge of speculation a science of big dreams allies itself with the study of other non-linear processes such as weather, quantum physics, star formation, and art, which spontaneously generate new clusters of emergent order. From this perspective the open-ended dynamism and chaotic creativity of dreaming can be seen as provoking the conscious mind into a greater understanding of itself and the world.”—Kelly Bulkeley

“…[C]ontemporary philosophical and scientific literature has affirmed [the] ancient notion of the dream as prognostication, if this is understood not merely as foretelling the future, but as giving shape to the reality that will come to pass.”—Elliot R. Wolfson

“In our times [the] quest for meaning is part of a larger Euro-American movement of investing dreams with existential meaning, which in turn occurs in the context of the erosion of the magical garden and the death of god.”—Gananath Obeyesekere

“The tales of dreams suggest…that dreaming and waking partake of the same reality, which is both spiritual and physical.”—Wendy Doniger O’Flaherty

“The dream ether is the warp that myths are woven on; the weft is individual experience and art. Myths reflect our desire to believe that people really can dream the same dream, a desire that is a deep hope—a dream, if you will—that we all share. The myths that describe such experiences are shared dreams about shared dreams.”—Wendy Doniger O’Flaherty

“[O]ne can justifiably assert that Freud discovered psychoanalysis, or at least its central features, through his own dreams….”—Sigmund Freud

“[I]n spite of [the] self-criticisms, and in spite of the depression which followed the almost total neglect of the book by the outside world—only 35 copies were sold in the first six years after publication—The Interpretation of Dreams was always regarded by Freud as his most important work: ‘Insight such as this,’ he wrote in his preface to the third English edition, ‘falls to one’s lot but once in a lifetime.’”—James Strachey

“Anyone who has failed to explain the origin of dream-images can scarcely hope to understand phobias, obsessions or delusion or to bring a therapeutic influence to bear on them.”—James Strachey

“It may happen that a piece of material occurs in the content of a dream which in the waking state we do not recognize as forming a part of our knowledge or experience.”—Sigmund Freud

“[D]reams have at their command memories which are inaccessible in waking life.”—Sigmund Freud

“Now most dream-images are unique experiences; and that fact will contribute impartially towards making us forget all dreams.”—Sigmund Freud

“[T]he emergence of impulses which are foreign to our moral consciousness is merely analogous…to the fact that dreams have access to ideational material which is absent in our waking state or plays but a small part in it.”—Sigmund Freud

“I have been driven to realize that here once more we have one of those not infrequent cases in which an ancient and jealously held popular belief seems to be nearer the truth than the judgment of the prevalent science of today. I must affirm that dreams really have a meaning and that a scientific procedure for interpreting them is possible.”—Sigmund Freud

Regarding the psychological preparation of the subject for dream interpretation in psychoanalysis: “We must aim at bringing about two changes in him: an increase in the attention he pays to his own psychical perception and the elimination of the criticism by which he normally shifts the thoughts that occur to him.” [These are uncannily similar to preliminary practices for meditation instruction.]—Sigmund Freud

“I am far from seeking to maintain that I am the first writer to have had the idea of deriving dreams from wishes.”—Sigmund Freud

“[D]reams are given their shape in individual human beings by the operation of two psychical forces (or we may describe them as currents or systems); and that one of those forces constructs the wish which is expressed by the dream, while the other exercises a censorship upon this dream-wish and, by the use of that censorship, forcibly brings about a distortion in the expression of the wish.”—Sigmund Freud

“[A] dream is a (disguised) fulfillment of a (suppressed or repressed) wish.”—Sigmund Freud

A dream can both express and gratify a wish.

Anxiety dreams are a sub-species of dreams with a distressing content, the anxiety being superficially attached to the idea that accompanies it. Freud concedes that anxiety dreams are “dream structures unpropitious from the point of view of the wish-theory.”

“Freud eventually abandoned the idea that every dream was the gratification of a wish. In particular, he left open the possibility that a dream might be a manifestation—and representation of anxiety. And anxiety can be a realistic response to the world.”—Jonathan Lear

With regard to the manifest content of dreams: “(1) [D]reams show a clear preference for the impressions of the immediately preceding days; (2) they make their selection upon different principles from our waking memory, since they do not recall what is essential and important but what is subsidiary and unnoticed; [and] (3) they have at their disposal the earliest impressions of our childhood and even bring up details from that period of our life which, once again, strike us as trivial and which in our waking state we believe to have been long since forgotten.”—Sigmund Freud

Displacement refers to what occurs when “ideas which originally had only a weak charge of intensity take over the charge from ideas which were intensely cathected [charged with psychical energy] and at last attain enough strength to enable them to force an entry into consciousness.”—Sigmund Freud

“Censorship is served by processes such as displacement, whereby intensity and apparent importance are detached from a significant idea and passed along, by associative paths, to an insignificant idea. Displacement, along with condensation and other aspects of primary process constitutive of unconscious processing, are formal, syntactically characterisable operations. They account for the dream-work’s success in disguising desire, in the negative sense of making the content of wishes inaccessible.”—Sebastian Gardner

“Dreams are never concerned with trivialities; we do not allow our sleep to be disturbed by trifles. The apparently innocent dreams turn out to be quite the reverse when we take the trouble to analyze them.”—Sigmund Freud

The latent content of dreams refers to the “dream-thoughts” one arrives at through dream-work.

The process of condensation permits us to see how dreams are “meagre and laconic in comparison with the range and wealth of the dream-thoughts.”—Sigmund Freud

“[A] transference and displacement of psychical intensities occurs in the process of dream formation, and it is a result of these that the difference between the text of the dream-content and that of the [latent] dream-thoughts come about.”—Sigmund Freud

“Dreams are completely egotistical” insofar as “every dream deals with the dreamer himself.”—Sigmund Freud

In describing the interpretation of dreams as “the royal road to a knowledge of the unconscious activities of the mind,” Freud is referring, in Jonathan Lear’s words, to “the conscious waking activity of interpreting dream-memories in the analytic situation.”

If one takes Freud’s principles of dream interpretation seriously, it “emerges that the interpretation of dreams is an ethical activity.”—Jonathan Lear

“More than any other psychic phenomenon, dreams reveal so regularly and so graphically the variety of unconscious forces, including the unconscious ego and superego as well as dynamic and genetic factors. As compromise formations rather than mere wish fulfillments, dreams prove crucial for indicating the nature of pathology and defensive structure.”—Patrick J. Mahony

“What is meant by lucid dreaming? The French dream theorist Michel Jouvet puts it thus: ‘A dream is lucid when the subject, while dreaming, knows he or she is dreaming. This peculiar state allows the dreamer a certain measure of control over the actual unfolding of the dream and a sense of freedom through being able to explore the dream world according to his or her own inclinations’ [The Paradox of Sleep (Laurence Garey, trans.) Cambridge, MA: MIT Press, 1999: 761]. What is striking about lucid dreaming is that, like its Buddhist and Hindu precursors, it provides technologies for disciplining oneself in order to dream lucidly. A detailed account of these technologies is found in the work of an important theorist, Stephen LeBerge, whose pioneering work Lucid Dreaming [1987] was followed by Exploring the World of Lucid Dreaming [1990], written with his collaborator Howard Rheingold.”—Gananath Obeyesekere

“In the West, mentions of lucid dreaming can be found in the writing of philosophers Aristotle, St. Thomas Aquinas, Thomas Reid, Pierre Gassendi and the first mention in Europe was in a letter written by St. Augustine of Hippo in 415 AD.”—Fariba Bogzaran

“Perhaps the awareness of lucid dreaming in Western academic circles [first] occurred with the publication of Marquis d’Hervey de Saint-Denys (1822-1892), a Sinologist who published Les rêves et les moyens de les diriger: observations pratiques (Dreams and the Ways to Direct Them: Practical Observations or often translated as Dreams and How to Guide Them). He documented more than twenty years of personal investigation into lucid dreams. Although working with dreams was not at the centre of his career, his book influenced and inspired many in the arts and literature including the surrealist André Breton. The name ‘lucid dreaming’ was coined by Dutch psychiatrist Frederick van Eden in 1913.”—Fariba Bogzaran

“Research and first-person accounts show that in lucid dreaming, different levels of intentionality can be carried out, such as transforming a self-image, ego-splitting; spiritual experiences; meeting the deceased; witnessing, entering hyperspace; healing, and encountering inner light.”—Fariba Bogzaran

“[W]hile lucid dream theory claims to have been influenced by Tibetan dream yoga, the latter has little affinity with lucid dreams.”—Gananath Obeyesekere

“The boundaries between waking and dreaming are more permeable in the Hindu, specifically Upanishadic thought.”—Sudhir Kakar

In the Mahābhārata, we find “a set of contrasting dreams on the eve of a great battle: nightmares in those who are about to be defeated, auspicious dreams in those who are about to conquer.”—Wendy Doniger O’Flaherty

“[I]t is argued in the Yogavāsistha, when we take the material universe to be the ultimate reality, we make a mistake comparable to the mistake someone makes when he thinks he sees his head cut off in a dream, a traditional image in Indian dream books.”—Wendy Doniger O’Flaherty

In the Advaita Vedānta school of classical Indic philosophy, “a good deal of importance [is attached] to the phenomenology of dream consciousness [svapna-sthāna] in order to show the continuity of consciousness and the persistence of self-awareness throughout all states of consciousness.”—Eliot Deutsch

“According to the Vedānta, the three kośas or sheaths associated with the dream state of consciousness and that constitute the ‘subtle body’ (sūksma-śarīra) of the self are the prānamayakośa, the sheath of ‘vitality,’ the manomayakośa, the sheath of ‘mind,’ and the vijñānamayakośa, the sheath of ‘understanding.’ [….] Both the manomayakośa and the vijñānamayakośa form the antahkarana or ‘internal organ,’ which is the psychological expression for the totality of mental functions in waking-dream consciousness, [and, as such, are subject to a pervasive avidyā (ignorance)].”—Eliot Deutsch

In addition to the states of consciousness associated with the waking state and the dream state, there is the third state of consciousness found in “deep sleep” (susupti). Only turīya (lit., ‘the fourth’), the fourth state of consciousness recognized by Vedānta, is characterized as the “transcendental” or a “pure” state of consciousness. Later in the tradition, we find not one but two states of consciousness beyond deep sleep: savikalpa samādhi and nirvikalpa samādhi, the former still a “determinate” spiritual experience, “but unlike in susupti, the deep-sleep state, the emphasis here is not so much on the absence of duality as it is on the presence of non-duality.” This might be described as a liminal state betwixt and between the jīva and the Ātman, the self poised on the precipice, as it were, of nirvikalpa samādhi, the awareness of nirguna Brahman. As Deutsch explains, the waking and dreaming states of consciousness correspond to the phenomenal world of gross and subtle bodies; the states of deep sleep and savikalpa samādhi correspond to saguna (‘qualified’) Brahman, while turīya or transcendental consciousness and nirvikalpa samādhi correspond to Ultimate Reality or nirguna Brahman (recalling the equation Ātman = Brahman).

Just as the dream state is “subrated” (disvalued, contradicted, and transcended) by the state of waking consciousness, so too nirguna Brahman, as “ultimate reality” subrates all prior experience, while nothing else is capable of subrating Brahman, defined as spiritual experience utterly bereft of distinction or determination (nirvikalpa samādhi), and described as an immediate (hence unmediated) consciousness or awareness on the order of complete or absolute self-knowledge and self-realization.

Vasubandhu, a Yogācāra (or Vijñānavāda) Buddhist, argued that dreams were evidence of the possibility of experience without an external world. Śankara, the Advaita Vedāntin philosopher, “provides a refutation of this argument, based on its inability to meet the requirements (accepted by Vasubandhu) of the pramāna theory for knowledge. Vasubandhu’s crucial move in his use of the analogy of dreaming is to point to the lack of externality in dreaming when the experience of dreaming otherwise resembles



February 2, 8:42 AM   /   Ratio Juris   /   Facts & Values, Truth & Objectivity—An Introduction (Part III)


This is the third and final installment in our series. Part I is here, and Part II is here.

‘Recently Iris Murdoch has put forward the view that the whole “fact/value” dichotomy stems from a faulty moral psychology: from the metaphysical picture of “the neutral facts” (apprehended by a totally uncaring faculty of reason) and the will which, having learned the neutral facts, must “choose values” either arbitrarily (the existentialist picture) or on the basis of “instinct.” I think she is right; but setting this moral psychology right will involve deep philosophical work involving the notions of “reason” and “fact” (as she, of course, recognizes).’—Hilary Putnam

‘The concept factual judgment or judgment with a truth-value and the concept of ethical judgment will be different concepts—such a distinction is there to be made, just as the concept mouse and the concept mammal are different concepts—but the distinctness does not preclude a judgment’s being both a factual and an ethical judgment. Compare the way in which the distinct concepts mouse and mammal will each collect any particular mouse you please, Timmy Willy or Johnny Town or whichever, within their extensions. Ethical judgments could be a subset of factual judgments even if they were an utterly special and essentially contestable subset. In this way, we can have a clear difference between the ethical-as-such and the factual-as-such without any dichotomy between their property provinces. The hope of making good a claim of this sort is the characteristic hope of ethical objectivism or moral cognitivism.’—David Wiggins

‘A predicate stands for a natural property if it is indispensable to the exposition or development of some natural science (or to some similarly strictly empirical-cum-explanatory mode of investigation). A non-natural property is simply one that is not like that. It is a myth and the opposite of the truth that our grasp of properties that are natural in this sense is better than our grasp of the non-natural.’—David Wiggins

‘Consider the ethical predicate “considerate.” That which marks out or delimits or decries or discriminates the property of considerateness in acts or attitudes or human characters is an essentially ethical interest, in pursuit of which we can deploy any mode of investigation or and associated concept that suits the case. The presence of such properties, that is, of value properties, is ascertained by all the multifarious means that are called for by the exercise of our grasp of this or that ethical concept. Such properties are to be conceived in light of what it takes to exercise that grasp—not vice versa. A particular ethical property, we might say, is to be identified or singled out as the property which the reasonable exercise of the grasp of such and such a concept, as regulated by criticism, hunts down.’—David Wiggins

‘Objectivity calls for putting one’s idiosyncratic predilections and parochial preferences aside in forming one’s beliefs, evaluations and choices. It is a matter of proceeding in line not with one’s inclinations but with the dictates of impartial reason. The universality of reason must be recognized: What is rational for one person to do, to believe, or to value will thereby also of necessity be equally rational for all the rest of us who might find ourselves in the same circumstances. For rationality is inherently “objective:” it does not reconfigure itself to meet the idiosyncratic predilections of particular individuals. To be sure, objectivity will have to take context into account, seeing that different individuals and groups confront very different objective situations. Rationality is universal, but it is circumstantially universal—and objectivity with it. It is a matter of what “any of us” would do in one’s place. [….] The contextuality of good reasons can be reconciled with the universality of rationality itself by taking a hierarchical view of the process through which the absolutistic (and uniform) conception of ideal rationality is thought to bear context differently, on the resolution of concrete cases and particular situations.’—Nicholas Rescher

‘The content of an assertion is intrinsically related to a conceptual scheme. [….] In effect, propositions, true or false, are implicitly indexed to some conceptual scheme or schemes. [….] Facts are internal to conceptual schemes, or ways of dividing the world into objects, among which there can be equally acceptable alternatives. [….] [S]uch metaphysical pluralism is consistent with realism about truth.’—Michael P. Lynch

‘[I]n taking concepts to be flexible and fluid like, the pluralist is not saying that we are confused about our concepts. Rather, the point is that concepts are not absolutely determinate or closed; they do not have a fixed use in every possible situation. This does not imply, however, that no concepts have determinate uses in all actual situations. Some concepts may be perfectly determinate in actual situations, but not in all possible situations. [….] For the pluralist, concepts are…flexible; they are subject to possible extension in the fact of unforeseen circumstances. Hence, there can be irresolvable disagreements over how to apply any concept. In a sense, concepts are therefore always possibly vague in a nonpejorative sense; they have what Waismann called “open texture.”’—Michael P. Lynch

‘Minimally speaking, a proposition is true in the realist sense when things are as that proposition says they are. Some aspect of objective reality must simply be a certain way. If it is, then the proposition is true; if not, the proposition is false. The truth of the proposition hinges on the world alone, not on our thought about the world. In short, realism about truth minimally implies two commitments: (a) truth is an authentic property that some propositions have and others lack, and (b) the concept of truth is, in Putnam’s words, “radically non-epistemic;” that is, whether a proposition is true (in most cases) does not depend on what I or anyone else believes or knows. [….] According to correspondence accounts of truth, there are three metaphysical aspects to any true proposition: the proposition itself (the truth bearer), its correspondence (the truth relation), and the reality to which it corresponds (the truth marker). [….] In other words, propositions are true when they correspond to the facts.’—Michael P. Lynch

‘[T]here is no logical incoherence in supposing that facts and propositions are relative to conceptual schemes and that truth is the correspondence of (relative) propositions with (relative) facts.’—Michael P. Lynch

Truth is objective; it is good to believe what is true; truth is a goal worthy of human inquiry; and truth is worth caring about for its own sake.

‘Thinking about why we should care about truth tells us two things about it: first, that truth is, in part, a deeply normative property—it is a value. And second, this is a fact that any adequate theory of truth must account for. In light of this fact, I suggest that truth, like other values, should be understood as depending on, but not reducible to, lower-level properties. Yet which properties truth depends on or supervenes on may change with the type of belief in question. This opens the door to a type of pluralism: truth in ethics may be realized differently than in physics.’—Michael P. Lynch

‘Truth is a property that is good for beliefs to have. Since propositions are the content of beliefs, and it is the content of a belief and not the act of believing that is true, we can also say that truth is the property that makes a proposition good to believe.’—Michael P. Lynch

‘All truths are relative, yes, but our concept of truth needn’t be a relative concept.’—Michael P. Lynch

‘[T]he conditions under which a proposition is true are partly determined by the conceptual scheme in which the proposition is expressed. But what makes a proposition true is not its relation to a scheme but whether or not the conditions in question obtain. For a claim to be true (or false), the conditions must be relative to a scheme. Yet the reason that the claim is true is not because it is relative to a scheme (as the truth relativist must hold); it is true because it is the case.[….] A fact, in the human sense, is simply what is the case.’—Michael P. Lynch

‘Deflationists are right to be skeptical of the thought that any one traditional theory of truth can tell us what all and only true beliefs have in common. At a suitable level of abstraction, understanding what true beliefs are simply involves simply understanding what they do—their role in our cognitive economy. To play this role is to satisfy certain truisms, truisms that display truth’s connection to other concepts. It is this truth-role that gives truth its unity; the features that are constitutive of this role are what true propositions have in common, and simply having those features is what we ordinarily mean by saying that a proposition is true. But not all facts are exhausted by the truisms. One such facts is that there is more than one property that make beliefs true. Truth…is immanent in those other properties of beliefs. In some domains, what makes a belief true is that it corresponds to reality; in others, beliefs are made true by a form of coherence. [….] [Traditional theories of truth] are not best conceived of as theories of truth itself. They are better seen as theories of the properties that make beliefs true—or manifest truth.’—Michael P. Lynch

‘Truth is immanent in distinct properties of beliefs; our ordinary concept of truth is univocal.’—Michael P. Lynch

Core Folk Truisms (there may be other truisms): 1. Objectivity: ‘The belief that p is true if, and only if with respect to the belief that p, things are as they are believed to be…is a central truism about truth.’ 2. Norm of Belief: It is prima facie correct to believe that p if and only if the proposition that p is true.’ 3. Warrant of Independence: ‘Some beliefs can be true but not warranted and some can be warranted without being true.’ 4. End of Inquiry: Other things being equal, true beliefs are a worthy goal of inquiry.’—Michael P. Lynch

‘A theory of truth should make sense of the following metaphysical principle: Truth is One: There is a single property named by “truth” that all and only true propositions share.’ The theory should also be ‘able to make sense of the intuition that drives pluralism about truth, namely, Truth is Many: there is more than one way to be true.’—Michael P. Lynch

‘[T]ruth is a single higher-level property whose instantiations across kinds of propositions are determined by a class of other, numerically distinct properties. [….] Truth is many because different properties may manifest truth in distinct domains of inquiry. In those domains they have the truish features [we find in those folk-truisms enumerated above]. Truth is one because there is a single property so manifested, and “truth” rigidly names that property.’—Michael P. Lynch

‘Truth is an immanent functional property that is variably manifested.’—Michael P. Lynch

An atomic proposition of some domain is true, if and only if, it has the particular property that manifests true for propositions in that domain. The truth-value of compounds supervenes on the truth-value of atomic propositions.

‘In the denial that artwork can or should make truth claims I see formalism joining hands with romanticism, to yield an aestheticism that renders art autonomous, to be sure, and perhaps even pleasantly anarchic, but also cut off from the rest of life, deracinated, robbed of its claim upon conscience or consciousness, and so transformed into little more than the toy of decadence.’—Lenn E. Goodman

‘I think artworks do make truth claims, even if not always propositionally. But no truth claim is self-validating, and artistic claims are not made true by virtue of their medium. Perhaps the most suspect of pretensions in behalf of artistic truth is the idea that art’s higher truth is somehow exempt from the demands of human understanding, critical thought, or moral judgment. That makes artists into hit-and-run oracles. Surely, even a higher truth, if it really is truth, is worthy and capable of scrutiny. That means that works of artistic fancy can and should he held accountable for their veracity, on whatever level they can make good their claims.’—Lenn E. Goodman

‘[A] uniformitarian absolutism at the high-generality level of “what rationality is” is perfectly consonant with a pluralism and relativism at the lower level of concrete resolutions regarding “what is rational” within the contextual setting of particular cases. The ruling principles of rationality never uniquely constrain their more specific circumstantial implementations. At each step along the way we repeat the same basic situation: delimitation, yes; determination, no. The sought-for reconciliation between the universalistic absoluteness of rationality and the variability and relativity of its particular rulings is thus provided for by the consideration that the absolutism of principles operates at the highest level of the hierarchy of rational development, while there is ever “slack” and variability as one moves towards the lowest level of concrete determinations. The variability and relativity of good reasons at the level of our actual operations can indeed be reconciled with the absolutism of rationality itself by taking a hierarchical view of the process through which the absolutistic conception of ideal rationality is brought to bear on the resolution of concrete circumstances and particular situations.’—Nicholas Rescher
‘In characterizing a belief as objectively rational we are certainly not claiming that there is a universal consensus about it. No matter how sensible a contention on any significant issue may be, there is an ever-present prospect that some people—perhaps even many—will nevertheless quite defensibly and appropriately dissent from it. The validity of our judgments is emphatically not destroyed by finding that there are people who reject them.’—Nicholas Rescher

‘We have to come to terms with epistemic realities, which include: 1) the diversity in people’s experiences and cognitive situations; 2) the variation of “available data;” 3) the underdetermination of facts by data (all too frequently insufficient); 4) the variability of people’s cognitive values (evidential security, simplicity, etc.); 5) the variation of cognitive methodology and the epistemic “state of the art.” Such factors—and others like them—make for an unavoidable difference in the beliefs, judgments, and evaluations even of otherwise “perfectly rational” people.’—Nicholas Rescher

‘If we are going to be rational we must take—and have no responsible choice but to take—the stance that our own standards (of truth, value, and choice) are the appropriate ones. Be it in employing or in evaluating them, we ourselves must see our own standards as authoritative because this, exactly, is what it is for them to be our own standards—their being our standards consists in our seeing them in this light. We have to see our standards in an absolutistic light—as the uniquely right appropriately valid ones—because this is what is at issue in their being our standards of authentic truth, value, or whatever. To insist that we should view them with indifference is to deny us all prospects of having any standards at all. Commitment at this level is simply unavoidable. Our cognitive or evaluative perspective would not be our perspective did we not deem it rationally superior to others.’—Nicholas Rescher
‘What people think to be true is clearly something that is person-variable and thus relative. We can take the line that “What is true?” is a question that different people can quite appropriately answer differently because of the interpersonal variability of available information. But what truth is all about is something that is…altogether definite and fixed. The evidentiation at issue in the epistemic sector is doubtless interpersonally and intercommunally variable. But variability on the side of information does not make for variation on the side of concepts.’—Nicholas Rescher

‘[W]e can (quite appropriately) disagree about what it is that is true and what good reasons are at hand, while yet maintaining an (appropriately) absolutistic view of what truth and good reasons are. The ideal nature of actual truth and of actual good reasons that inhere in our (defining) conceptions of inquiry establishes a clear limit to the implications of cognitive relativism. To re-emphasize: a pluralistic contextualism of potential basis-diversity is altogether compatible with an absolutistic commitment to our own basis. One can accept the prospect of alternatives as available to the community at large without seeing more than one of them appropriate for oneself. One can combine a pluralism of possible alternatives with an absolutistic position regarding ideal rationality and a firm and reasoned commitment to the standards intrinsic to one’s own position. We ourselves are bound to see our own (rationally adopted) standards as superior to the available alternatives—and are, presumably, rationally entitled to do so in light of the cognitive values we in actual fact endorse. The crux of the pluralism issue lies in the question of just what it is that one is being pluralistic about.’—Nicholas Rescher

‘The immense success of quantitative techniques in the mathematicizing-sciences has misled people into thinking that quantification is the only viable road to objectively cogent information. But think—is it really so? Where is it written that numbers alone yield genuine understanding—that judgment based on structural analysis or qualitative harmonization is unhelpful and uninformative, so that where numbers cannot enter, intelligibility flies away? (Modern mathematics itself is not all that quantitative, since it is deeply concerned with issues such as those of topology and group theory that deal with structures in a way that puts quantitative issues aside.) [….] To be sure, to acknowledge the limits of measurability is not to downgrade the whole process, let alone to propose its total abandonment. It is precisely because we are well advised to push the cause of measurement as far as we legitimately can that we need to be mindful of the line between meaningful measurement and meaningless quantifications. That we cannot draw this line better than seems to be the case at present is—or should be—a proper cause for justified chagrin. But for present purposes the salient point is that quantification does not carry measurability in its wake nor necessarily indicate objectivity. Polls quantify public opinion, but need they indicate anything objective? The sales price of entries in an art auction are perfectly good quantities, but they reflect no more than the elusive fashion and passion of the moment. There is nothing about quantities as such to indicate that they measure anything objective. Three lessons emerge:

a) While measurement requires quantification, quantification is not sufficient for measurement. b) Quantification is neither necessary to nor sufficient for objectivity. c) Actual measurement, while indeed sufficient for objectivity, is not necessary for it. The long and short of it is that the linkage between objectivity and quantification is more distant and more complex than is commonly envisioned.’—Nicholas Rescher

‘Any adequate worldview must recognize that the ongoing process of scientific inquiry is a process of conceptual innovation that always leaves various facts about the things of this world wholly outside the cognitive range of the inquirers of any particular period.’ —Nicholas Rescher

‘There is no more evidence that science converges to one final worldview than there is that literature or morality converge to one final worldview.’—Hilary Putnam

‘…[The] “scientific” is not coextensive with “rational.” There are many perfectly rational beliefs that cannot be tested ‘scientifically.’ But more than that, …there are whole domains of fact with respect to which present-day science tells us nothing at all, not even that the facts in question exist. These domains are not new or strange. Three of them are (1) the domain of objective values; (2) the domain of freedom; (3) the domain of rationality itself.’—Hilary Putnam

‘[F]ailures of objectivity—wishful thinking, self-deception, bias-indulgence, and similar departures from the path of reason—may be convenient and even, in some degree, psychologically comforting. But they are ultimately indefensible. For if it is a viable defense of a position that we want, it is bound to be a rational one. In the final analysis, “Why be rational?” must be answered with the only rationally appropriate response: “Because rationality itself obliges us to be so.” In providing a rational justification of objectivity—and what other kind would we want?—the best we can do is to follow the essentially circular (but nonviciously circular!) line of establishing that reason herself endorses taking this course. The only validation of rationality’s recommendations that can reasonably be asked for—and the only one worth having—must lie in the consideration of the systemic self-sufficiency of reason. Reason’s self-recommendation is an important and necessary aspect of the legitimation of the rational enterprise. And in those matters where rationality counts, objectivity is the best policy by virtue of this very fact itself.’—Nicholas Rescher

‘Heeding the strictures of morality is part and parcel of a rational being’s cultivation of the good. For us rational creatures morality (the due care for the interests of rational beings) is an integral component of reason’s commitment to the enhancement of value. Reason’s commitment to the value of rationality accordingly carries in its wake a commitment to morality. The obligatoriness of morality ultimately roots in an ontological imperative to value realization with respect to self and world that is incumbent on free agents as such. On this ontological perspective, the ultimate basis of moral duty roots in the obligation we have as rational agents (toward ourselves and the world at large) to make the most and best of our opportunities for self-development. Moral obligation ultimately inheres in this ontological obligation to the realization of values in one’s own life.’—Nicholas Rescher

‘[T]he crucial question for rationality is not that of what we prefer but of what is in our best interests; not simply what we happen to desire but what is good for us in the sense of contributing to the realiz



January 31, 11:00 PM   /   Ratio Juris   /   How Good Laws—and good social norms—Make Good People

At PrawfsBlawg, they’re having a discussion of Lynn Stout’s Cultivating Conscience: How Good Laws Make Good People (2010): here, here, here, here, here, and here. The Princeton University Press webpage for the book introduces us to its central argument:

Contemporary law and public policy often treat human beings as selfish creatures who respond only to punishments and rewards. Yet every day we behave unselfishly--few of us mug the elderly or steal the paper from our neighbor’s yard, and many of us go out of our way to help strangers. We nevertheless overlook our own good behavior and fixate on the bad things people do and how we can stop them. In this pathbreaking book, acclaimed law and economics scholar Lynn Stout argues that this focus neglects the crucial role our better impulses could play in society. Rather than lean on the power of greed to shape laws and human behavior, Stout contends that we should rely on the force of conscience.

Stout makes the compelling case that conscience is neither a rare nor quirky phenomenon, but a vital force woven into our daily lives. Drawing from social psychology, behavioral economics, and evolutionary biology, Stout demonstrates how social cues--instructions from authorities, ideas about others’ selfishness and unselfishness, and beliefs about benefits to others--have a powerful role in triggering unselfish behavior. Stout illustrates how our legal system can use these social cues to craft better laws that encourage more unselfish, ethical behavior in many realms, including politics and business. Stout also shows how our current emphasis on self-interest and incentives may have contributed to the catastrophic political missteps and financial scandals of recent memory by encouraging corrupt and selfish actions, and undermining society's collective moral compass.

I’ve yet to read the book, so I can’t make any substantive comments on its thesis, although I’m predisposed to view it with favor, at least I think I understand the animating motivation for the argument. And I won’t in this post address the question of “how good laws (and good social norms) can make good people.” In any case, the emphasis in “law and economics” scholarship “on self-interest and incentives” has long been troubling, and Amartya Sen, among others, has critiqued the psychological assumptions behind homo economicus, while S.M. Amadae, again among others, has critiqued “rational choice theory” as conventionally employed in the social sciences: neither Sen nor Amadae are cited in the book. So while economists and philosophers have addressed some of the moral, psychological, and general normative assumptions that come with neo-classical economics, the problems intrinsic to “law and economics” as an area of legal study are not all found on the right side of the conjunction, for the other half of this cross-disciplinary enterprise—law—is routinely construed in strongly positivistic and instrumentalist terms (or, at best, in utilitarian fashion), which only compounds the problem.

But the questions I want to focus on concern the reliance on “conscience” to transform various areas of the law and the legal system generally. In one sense, Stout’s thesis may be judged too modest in aim and aspiration, particularly considered in comparison with the potential for the natural law tradition to reform or radically alter our laws and the attitudes of citizens to their legal system in a democratic constitutional polity. In a future post, I’ll attempt to outline the potential for the natural law tradition and aretaic legal theory to demonstrate the manner in which “good laws (and good social norms) can make good people” (and how good people may be necessary to make good laws).

The part played by conscience in our social and political life is typically circumscribed by the power of the moral no: the ethical refusal to engage in some enterprise, to perform some act, to behave in some morally repugnant manner, or to call attention to some egregious moral violation on the part of the government or some powerful institution in civil society. To invoke the call of conscience means to stand alone or apart for the sake of a fundamental or moral value or principle of ethics, grounded in the basic exercise of moral discrimination through a sacred right of refusal (hence, the ‘voice within,’ the ‘inner light’). Stout defines conscience as an “internal force that inspires unselfish, prosocial behavior,” but this definition is misleading if we consider how individual conscience is typically intended as a defense against the group. Of course the individual taking a stand on the promptings of conscience may inspire group or collective action of some sort, and those who take stand on the basis of a claim of conscience are seeking recognition by others of some moral truth or truths they see more clearly and urgently than the rest of us (what Vischer terms the ‘relational dimension’ of conscience’). But it strikes one as strange to make the inspiration of “prosocial behavior” an essential part of the meaning of the concept. I don’t mean to dismiss or diminish the power and importance of conscience, but I’m inclined to see it primarily as negative in scope, and thus restricted to an ex post rather than ex ante orientation. Consider, for example, how the notion of conscience did not assume its modern meaning until late in the eighteenth century (the seeds for the concept were sown as far back as Sophocles, Euripides, Socrates, and the Stoics in the West), when individuals invoked the claims of conscience as a viable substitute for identification with sectarian religions.

The individual orientation of what Gandhi called the “Court of Conscience” and the “still small voice within,” is best seen from the vantage point of moral psychology as a developmental outcome, so much so that we take its presence as indicative of moral individuation and moral autonomy. Conscience, on this view, is thus not something one has ready-at-hand upon reaching the age of reason, for it is a potential or capacity that needs to be awakened and nurtured, in Gandhi’s words, it is “the ripe fruit of the strictest discipline.” In other words, it seems hard to believe that conscience today is, as Stout says, “a vital force woven into our daily lives,” a claim not rendered true by the sheer volume of claims of conscience in our society. This should certainly give one pause in imagining anything like a well-honed conscience (to mix metaphors) as deeply ingrained and widespread throughout society. The individuality of conscience combined with its role in the courageous or uncommon expression of warnings or admonitions or refusals—the power of no—does not appear to make it well-suited for the role Stout intends for it. To complicate matters yet further, Rob Vischer has recently noted that, “[i]ncreasingly the individual who invokes conscience is opposed not by the state, but by the similarly conscience-driven claims of other individuals and groups.” For better and worse, in the era of “rights claims,” invocations of conscience may come too easy, reflecting a conspicuous lack of the kind of cultivation and training Gandhi thought absolutely necessary to the exercise of true conscience.

There is one glaring exception to the picture of conscience I’ve sketched here and that comes, oddly enough, from Gandhi himself. Gandhi’s conscience was atypical inasmuch as his “inner voice” also came in the form of “positive guidance.” Closer to the role Stout would envisage for conscience, and unlike most of those who came before and after him in invoking claims of conscience, Gandhi’s “stress on individual conscience” was wedded to a “program of mass action,” for he in fact made conscience “the basis of all social and political action.” It’s hard to imagine, however, more than a few individuals capable of conjoining the roles of saint and revolutionary in the manner exemplified my Gandhi.

At a later date I hope to show why I think aretaic legal theory and the natural law tradition are better suited to the sorts of tasks Stout imagines for conscience, as a “tool or weapon,” in transforming our laws and the legal system.



January 31, 2:22 PM   /   Agricultural Law   /   Marijuana Cultivation Is Agriculture, too. No?

In the four years since I founded Legal Ruralism and started requiring students in my Law and Rural Livelihoods course to blog with me, they have written a lot about marijuana, its production, and its legal regulation in the context of Northern California. Read some of their posts here, here, here, here and here. I more often write about pot in relation to my home county in Arkansas, in my "Law and Order in the Ozarks" series, when the local newspaper reports the drug/plant's seizure in the Sheriff's Report. Some examples are here and here. (Such stories were previously much more common, before meth came to town).


I have typically thought of these marijuana stories in relation to crime and law enforcement, including this story in yesterday's San Francisco Chronicle. The gist of it is that the Mendocino County, California Board of Supervisors voted last week to stop issuing permits for collectives that grow medical marijuana. Doing so will cut revenue at least $500,000, and that money is going to come out of the Mendocino County Sheriff's budget.
That sure sounds like a criminal law/drug policy story, but when you think about it, it's also a an ag law story. After all, the Agricultural Law Blog is chock full of stories about the legal regulation of agriculture--especially federal regulation--and that's exactly what's happening in California as the U.S. Attorneys here declare that regulations like those promulgated by Mendocino County regulations are at odds with federal law.
Further, if my students and their sources are to be believed, pot growing is big business in northern California's more rural counties, including Lake, Mendocino, Humboldt, and Trinity counties in particular. Marijuana--like corn, beans, oats, cotton--is cultivated and sold for cash (albeit often illegally). Indeed, pot is presumably the most significant cash crop in these California counties (and perhaps some others around the nation). In short, it is a serious economic engine of an agricultural variety. This 2009 CNBC story asserts that marijuana accounts for two-thirds of the Mendocino County economy; CNBC's source is a Mendocino County study. Here's a quote from a Mendocino County resident included in that story--a quote that makes the ag law link:
This is as natural as growing corn to me. This is the lifeblood of the county. And it has been for more than 30 years.
In light of the economic impact of pot cultivation, what should we expect from the federal crackdown on medical marijuana and California county governments' responses to it? Probably not a lot. I suppose the federal crackdown is unlikely to have much impact because most marijuana growers will continue to produce--whether or not there is the possibility of distributing their product legally. It may be that the only resulting change is the reduction of funds in county coffers associated with licensing its production.



January 31, 3:03 AM   /   Ratio Juris   /   The Linguistic Consequences of Mind-Brain Identity





I’ve got a lot on my brain.

I’m going to give you a piece of my brain.

Brain your p’s and q’s.

I don’t brain.

Make up your brain.

Brain your manners.

I’m going out of my brain.

Buddhists practice brainfulness.

I’m of mixed brain.

A brain is a terrible thing to waste.

I don’t brain.

These examples are brain-boggling.

She has one sharp brain.

Still your brain.

She’s well-versed in the philosophy of brain literature.

Approach the subject with an open brain.

It concentrates the brain wonderfully.

I turned my brain to other things.

I can’t get you out of my brain.

Out of sight, out of brain.

It crossed my brain.

I’m absent-brained.

I took a load off my brain.

The thought of her couldn’t be further from my brain.

I can’t wrap my brain around it.

My brain went blank.

They’re like-brained.

What do you have in brain?

I have half a brain to refuse her plea.

My brain was willing, but my body was not.

An enquiring brain wants to know.

His brain is rather twisted.

He has a criminal brain.

Bear in brain that I mean what I say.

It’s been on the back of my brain.

Freud discovered the hidden structures of the brain.

The date slipped my brain.

I keep replaying the episode over-and-over again in my brain.

I can see it in my brain’s eye!

She’s rather fond of brain games

There was a consensual meeting of brains.

If you put your brain to it, you’ll succeed.

His brain was on vacation, but his mouth was working overtime.

His brain is gone!

My brain was unhinged by the thought of divorce.

He has a brain like a steel trap.

That’s a pharmaceutical candidate for a brain-expanding hallucinogen.

She has a certain presence of brain.

If you don’t brain, can I go ahead of you?

Brain you, don’t forget to feed the dog.



January 30, 11:11 PM   /   Agricultural Law   /   Adverse Animal Health Impacts Associated with Fracking

A new peer-reviewed scientific article on the negative animal health impacts of gas drilling was recently published in New Solutions, Vol. 22(1) 51-77, 2012.

 Impacts of Gas Drilling on Human and Animal Health by Michelle Bamberger and Robert E. Oswalde is a study of the health problems reported by those who live and farm near gas drilling operations. Most striking are the animal deaths and illnesses.  As the study noted, "[b]ecause animals often are exposed continually to air, soil, and groundwater and have more frequent reproductive cycles, animals can be used as sentinels to monitor impacts to human health."

The study relied on interviews with residents and animal owners in areas affected by gas drilling in Colorado, Louisiana, New York, Ohio, Pennsylvania, and Texas; state environmental regulatory agency documentation; interviews with veterinarians; water, soil, and air testing results; lab tests on affected animals and their owners; and interviews with drilling company representatives.

Health impacts that are reported include sudden death, neurological impairment, severe reproductive problems, including abnormal births and still birth, as well as urological, gastrointestinal, and dermatological maladies.

Some problems are linked to accidental exposure to toxic chemicals as a result of a spill or negligence.  Other problems are linked to more insidious exposure through normal operations. Contaminated fresh water supplies and access to toxic wastewater were commonly associated with the most serious health problems and many deaths. Cattle with access to creeks near wells have died suddenly. Cats and dogs who licked their paws after walking through and drinking from wastewater puddles, "became severely ill and died over a period of one to three days."  The reports are straightforward and objectively reported, and very powerful.

The authors concede that "[c]omplete evidence regarding health impacts of gas drilling cannot be obtained due to incomplete testing and disclosure of chemicals, and nondisclosure agreements." Indeed, the authors make a strong case for "common sense policy reforms" that would allow for the collection of the data necessary to support more detailed scientific analysis of short and long term health impacts.

Nevertheless, the study confirms that "clear health risks are present in gas drilling operations," and it documents a wide variety of serious health problems observed in farm animals, domestic pets, wildlife, and humans who live in proximity to such operations.  The authors conclude, "[w]ithout rigorous scientific studies, the gas drilling boom sweeping the world will remain an uncontrolled health
experiment on an enormous scale."



January 30, 7:27 AM   /   Ratio Juris   /   Facts & Values, Truth & Objectivity—An Introduction (Part II)

[The series was introduced in our prior post.]

‘[E]motions can reveal value that they contain. But in addition, people’s characters and their value can be revealed by emotions. [….] [E]motions reveal not just our values and evaluations but much of our interior and exterior worlds….’—Michael Stocker (with Elizabeth Hegeman)

‘Emotions may show valuings rather than value: how a person values something, not the value something has or the value the person takes it to have, Sometimes people have emotions that contain and reveal valuings, not values; and sometimes people have emotions that reveal a lack of valuing, even in the face of acknowledged value.’—Michael Stocker (with Elizabeth Hegeman)

Emotions can be evaluatively accurate and informative, therefore we can justly say that emotions are epistemologically important for evaluations and evaluative knowledge.

‘[T]he values and evaluations of one’s having or not having certain emotions, and of the ways one has or does not have them, are rarely, if ever, central to our important ethical works, and they are often enough not even mentioned, much less discussed, in those works [among a few notable exceptions, Iris Murdoch’s The Sovereignty of Good, 1970, is mentioned]. However, I do not think that their absence from our works on ethics shows that these issues lack importance. I think, rather, that it shows an important lack, and indeed something of a lack of importance, in our work in ethics.’—Michael Stocker (with Elizabeth Hegeman)

‘[We] should respect our emotional responses and listen to what they have to say to us and about us. But they are not the final arbiter: our emotional responses should be held for examination and reflection. Of course, this cannot be done from an emotionless, purely rational perspective, for there is no such standpoint, but it should be done in the light of reason and of our other emotional responses to the other things we value. And if this examination and reflections shows that our emotional responses are not appropriate, then the emotion should cease.’—Peter Goldie

‘Values enter into the very definition of what a fact is; the realm of facts cannot be defined or specified without utilizing certain values. Values enter into the process of knowing a fact; without utilizing or presupposing certain values, we cannot determine which is the realm of facts, we cannot know the real from the unreal.’—Robert Nozick

Rational acceptability in the natural sciences depends ‘on such cognitive virtues as “coherence” and “functional simplicity,” show[ing] that at least some value terms stand for properties of the things they are applied to, and not just for feelings of the person who uses the terms.’—Hilary Putnam

Our knowledge of the world presupposes values, indeed, what comes to count as the real world depends upon our values. This is evidenced in the ‘implicit standards and skills on the basis of which we decide whether someone is able to give a true, adequate, and perspicuous account of even the simplest perceptual facts…’—Hilary Putnam

‘[F]act, (or truth) and rationality are interdependent notions. A fact is something that it is rational to believe, or, more precisely, the notion of a fact (or a true statement) is an idealization of the notion of a statement that it is rational to believe. [….] [B]eing rational involves having criteria of relevance as well as criteria of rational acceptability, and…all of our values are involved in our criteria of relevance. The decision that a picture of the world is true (or true by our present lights, or “as true as anything is”) and answers the relevant questions (as well as we are able to answer them) rests on and reveals our total system of value commitments. A being with no values would have no facts either. The way in which criteria of relevance involves values, at least indirectly, may be seen by examining the simplest statement. Take the sentence “The cat is on the mat.” If someone actually makes this judgment in a particular context, then he employs conceptual resources—the notions “cat,” “on,” and “mat”—which are provided by a particular culture, and whose presence and ubiquity reveal something about the interests and values of that culture, and of almost every culture. We have the category “cat” because we regard the division of the world into animals and non-animals as significant, and we are further interested in what species as given animal belongs to. It is relevant that there is a cat on the mat and not just a thing. We have the category “mat” because we regard the division of inanimate things into artifacts and non-artifacts as significant, and we are further interested in the purpose and nature a particular artifact has. It is relevant that it is a mat that the cat is on and just something. We have the category “on” because we are interested in spatial relations. Notice what we have: we took the most banal statement imaginable, “the cat is on the mat,” and we found that the presuppositions which make this statement a relevant one in certain contexts include the significance of the categories animate/inanimate, purpose, and space. To a mind with no disposition to regard these as relevant categories, “the cat is on the mat” would be as irrational as “the number of hexagonal objects in this room is 76” would be, uttered in the middle of a tête-à-tête between young lovers. Not only do very general facts about our value system show themselves in our categories (artifacts, species name, term for a spatial relation) but, our more specific values (for example, sensitivity and compassion), also show up in the use we make of specific classificatory words (‘considerate,’ ‘selfish’). To repeat, our criteria of relevance rest on and reveal our whole system of values.’—Hilary Putnam

‘There are a variety of reasons why we are tempted to draw a line between “facts” and “values”—and to draw it in such a way that “values” are put outside the realm of rational argument altogether. For one thing, it is much easier to say, “that’s a value judgment,” meaning, “that’s just a matter of subjective preference,” than to do what Socrates tried to teach us: to examine who we are and what our deepest convictions are and hold those convictions up to the searching test of reflective examination.’—Hilary Putnam

‘(1) In ordinary circumstances, there is usually a fact of the matter as to whether the statements people make are warranted or not. [….] (2) Whether a statement is warranted or no is independent of whether the majority of one’s cultural peers would say it is warranted or unwarranted. (3) Our norms and standards of warranted assertibility are historical products; they evolve in time. (4) Our norms and standards always reflect our interests and values. Our picture of intellectual flourishing is part of, and only makes sense as part of, our picture of human flourishing in general. (5) Our norms and standards of anything—including warranted assertibility—are capable of reform. There are better and worse norms and standards.’—Hilary Putnam

‘The moral life is not intermittent or specialised, it is not a peculiar or separate area of our existence…. [W]e are always deploying and directing our energy, refining it or blunting it, purifying it or corrupting it…. “Sensitivity” is a word which may be in place here…. Happenings in consciousness so vague as to be almost non-existent can have “moral colour”… (“But are you saying that every single second has a moral tag?” Yes, roughly.)’—Iris Murdoch

Because our states of consciousness and action presuppose perceptual (or epistemic) discrimination, any such discrimination is subject to moral evaluation.

‘The moral point is that “facts” are set up as such by human (that is moral) agents. Much of our life is taken up by truth-seeking, imagining, questioning. We relate to facts through truth and truthfulness, and come to recognise and discover that there are different modes and levels of insight and understanding. In many familiar ways, various values pervade and colour what we take to be the reality of our world; wherein we constantly evaluate our own values and those of others, and judge and determine forms of consciousness and modes of being.’—Iris Murdoch

‘In recognizing the compelling power of values, and of logical principles (their normative, or what is sometimes called their ‘magnetic quality’), we humans are plainly recognizing something that goes beyond the observed facts of the natural world. And the theistic outlook now proposes to interpret these features as signifying the presence, beyond the empirical world, of a transcendent supernatural domain that is by its very nature normative—rational and moral. The two principal categories of the normative, the rational and the good, are features which traditional theology has held to apply to God in virtue of his very nature. God is goodness itself (Aquinas), he is the Logos—ultimate rationality (St. John). In short, beyond, or behind, the observable universe—the sequence of events that is simply one contingent happening after another—there is for the theist a domain of eternal value and reason, a domain that impinges on our empirical world, making us respond to something beyond the mere sequence brute facts. We human creatures (since we are ourselves rational and moral beings, at least in part) are responsive to reason and value, and in being so responsive we participate, however dimly, in the divine nature.’—John Cottingham



January 28, 2:04 PM   /   Ratio Juris   /   Facts & Values, Truth & Objectivity—An Introduction (Part I)

The following are snippets from various philosophers representative, I believe, of their thoughts on facts and values, and questions of truth and objectivity.* I have occasionally interjected my own formulations based on their views. I hope these often provocative and perspicuous reflections will prod one into exploring the articles and books from which they were drawn as found in the list of “sources and further reading” appended to the end of the material (with Part III). It is there that you will find the various arguments and explanations that make full sense of these passages as found in their original context. Although I teach in a Philosophy Department, the bulk of my formal training is in the study of religions, thus I’m an autodidact and amateur when it comes to (especially ‘professional’) philosophy. I suspect that is the case with most of our readers. Nonetheless, lack of formal training in this regard should not preclude us from assiduously cultivating an ardent interest in philosophical topics, particularly those having to do with such conventional subject areas as metaphysics, ethics, epistemology, the philosophy of psychology, philosophy of mind, or, for example, questions of consciousness, “meaning,” beauty, value, objectivity, “the good,” and truth more generally.

* Please bear in mind that, as David Wiggins reminds us, the “fact-value” distinction is not identical to the “is-ought” or “is-must” distinction, even if on occasion they overlap.

[This introduction will be in three parts.]

Value(s) ‘refer to what is worth having or being, taken purely for its own sake, or what is such that (taken by itself, apart from anything it causes) it is preferable that it exist rather than not exist.’—Joel Kupperman

Value means goodness as an end: that which is worthwhile or desirable for its own sake.

We choose or determine that there be values, that they exist, but their character is independent of us.

To judge that something is good is to judge that it is properly valued.

Values are ‘intrinsic goods’ that by their nature enhance a life, that make a fundamental and positive contribution to human flourishing (eudaimonia).

‘Most philosophers who have written on the question of what has intrinsic value have not been hedonists; like Plato and Aristotle, they have thought that something besides pleasure and pain has intrinsic value. One of the most comprehensive lists of intrinsic goods that anyone has suggested is that given by William Frankena (1908-1994). It is this: life, consciousness, and activity; health and strength; pleasures and satisfactions of all or certain kinds; happiness, beatitude, contentment, etc.; truth; knowledge and true opinions of various kinds, understanding, wisdom; beauty, harmony, proportion in objects contemplated; aesthetic experience; morally good dispositions or virtues; mutual affection, love, friendship, cooperation; just distribution of goods and evils; harmony and proportion in one’s own life; power and experiences of achievement; self-expression; freedom; peace, security; adventure and novelty; and good reputation, honor and esteem, etc. (Presumably a corresponding list of intrinsic evils could be provided.) Almost any philosopher who has ever addressed the question of what has intrinsic value will find his or her answer represented in some way by one or more items on Frankena’s list. (Frankena himself notes that he does not explicitly include in his list the communion with and love and knowledge of God that certain philosophers believe to be the highest good, since he takes them to fall under the headings of ‘knowledge’ and ‘love.’) One conspicuous omission from the list, however, is the increasingly popular view that certain environmental entities or qualities have intrinsic value (although Frankena may again assert that these are implicitly represented by one or more items already on the list). Some find intrinsic value, for example, in certain “natural” environments (wilderness untouched by human hand); some find it in certain animal species; and so on.’—Michael J. Zimmerman

‘That which is extrinsically good is good, not (insofar as its extrinsic value is concerned) for its own sake, but for the sake of something else to which it is related in some way. For example, the goodness of helping others in time of need is plausibly thought to be extrinsic (at least in part), being derivative (at least in part) from the goodness of something else, such as these people’s needs being satisfied, or their experiencing pleasure, to which helping them is related in some causal way.’—Michael J. Zimmerman

Value judgments are implicit in emotions and in judgments that at first glance may not appear evaluative. Emotional states often function as indicators of our scale of values, of our appreciation and awareness of values.

‘[W]e notice something marked in the intentional perceptions and the beliefs characteristic of the emotions: they are concerned with value, they see their object as invested with value or importance. [….] The value perceived in the object appears to be of a particular sort. It appears to make reference to the person’s own flourishing. The object of the emotion is seen as important for some role it plays in the person’s own life. […] Another way of putting this point…is that the emotions appear to be eudaimonistic, that is, concerned with the person’s flourishing. And thinking for a moment about ancient Greek eudaimonistic ethical theories will help us to start thinking about the geography of the emotional life. In a eudaimonistic ethical theory, the central question asked a person is, “How should a human being live?” The answer to that question is the person’s conception of eudaimonia, or human flourishing, a complete human life. A conception of eudaimonia is taken to be inclusive of all to which the agent ascribes intrinsic value: if one can show someone that she has omitted something without which she would not think her life complete, then that is a sufficient argument for the addition of the item in question. Now the important point is this: in a eudaimonistic theory, the actions, relations, and persons that are included in the conception are not all valued simply on account of some instrumental relation they bear to the agent’s satisfaction. This is a mistake commonly made about such theories, under the influence of Utilitarianism and the misleading use of “happiness” as a translation for eudaimonia. Not only virtuous actions but also mutual relations of civic or personal love and friendship, in which the object is loved and benefited for his or her own sake, can qualify as constituent parts of a person’s eudaimonia. On the other hand, they are valued as constituents of a life that is my life and not someone else’s, as my actions, as people who are in some relation with me. For example, an Aristotelian really pursues social justice as a good in its own right: that is why she has put it into her conception of eudaimonia. She doesn’t want just any old conception, she wants the one that values things aright, in the way that a human being ought to. Once she puts it into her conception, however, she both seeks the intrinsic good of justice and seeks to be a person who performs just actions for their own sake.’—Martha Nussbaum

‘In reflecting about how a human being should live, a person may commend some very general goals as good for human beings in general: for example, friendship, parental love, civic responsibility. But she will also deliberate about which more concrete specification of each of these general ends she will prefer; some of this work still involves asking which specifications are to be commended for human beings in general. At some point in the process, however, we get to items that are not commended for all human beings, but are just her own ways of realizing the general human ends in her situation and context. For example, if the general goal were artistic cultivation and performance, she might realize this by playing the clarinet, but she would believe that other human beings can equally well realize it by dancing, or singing, or playing the oboe.’—Martha Nussbaum

‘If we ask what most people value most, the answers will fall mainly under three headings: ongoing features of one’s life (e.g., love, sets of personal relationships, a sense of success or achievement), particular experiences (e.g., moments of heightened awareness, or of euphoria or ecstasy), or things (e.g., money, expensive or attractive objects—perhaps only as a means, but very possibly for their own sake as well)’.—Joel Kupperman

‘To see something (e.g., a set of experiences, a way of life) as having high value is often to be motivated to promote it for other people in general, or to make it available to the people one most cares about, or to have for oneself.’—Joel Kupperman

‘Value or preciousness of persons has a dual role in my interpersonal actions. Your value generates a moral claim or constraint on my behavior toward you; because of your value, others (including me) ought to behave toward you in some ways, not in others. Also, my value is expressed in how I am best off behaving, in the kind of behavior that should flow from a being with my value, in how that value is shown or maintained in action. My value fixes what behavior should flow from me; your value fixes what behavior should flow toward you. Value manifests itself as a push and as a pull.’—Robert Nozick

There is a value cost to immoral behavior: The immoral life is a less valuable life than the moral one. ‘The immoral person thinks…his immoral behavior costs him nothing. But that is not true; he pays the cost of having a less valuable existence. He pays that penalty, though he doesn’t feel it or care about it.’—Robert Nozick

Structurally speaking, intrinsic value appears to be characterized by some degree of organic unity in which such unity suggests that the value of the whole is greater than the sum of its parts.

Values are abstract structures that can be realized in various ways. For instance, a work of music can exemplify and refer to values.

‘Values are to be brought about, maintained, saved from destruction, prized and valued (where this last is some descriptive term of psychology plus the theory of action).’ We ought to ‘care about, accept, support, affirm, encourage, protect, guard, praise, seek, embrace, serve, be drawn toward, be attracted by, aspire toward, strive to realize, foster, express, nurture, delight in, respect, be inspired by, take joy in, resonate with, be loyal to, be dedicated to, celebrate values. With the very highest values, we are to be elevated by, enthralled by, love, adore, revere, be exalted by be awed before, find ecstasy in these highest values.’—Robert Nozick

‘We are born, as social animals, into a cultural world of value and disvalue—a world where certain things matter, as harmful, dangerous, comforting, warming and so on. If we have been brought up in the right way, we will be disposed reliably to recognize these values and disvalues and to respond as we should: as Aristotle says: “at the right times, about the right things, towards the right people, and in the right way.” And if this happens, then we will care in the right way about the things that matter: not simply caring for justice and kindness as if for some vague idea, but caring that particular people in particular circumstances are treated as they should be—with fairness, honesty and consideration, so that we get angry (justifiably angry) if this doesn’t happen. It will become “second nature” to have these responses, so that our own interests narrowly conceived, are quite naturally far from being our only consideration in deciding what to do. Being disposed reliably to be motivated by specifically other-regarding moral considerations is part of what it is to have a virtue.’—Peter Goldie

‘There are some individuals whose lives are infused by values, who pursue values with single-minded purity and intensity, who embody value to the greatest extent. These individuals glow with a special radiance. Epochal religious figures often have this quality. To be in their presence (or even to hear about them) is to be uplifted and drawn (at least temporarily) to pursue the best in oneself. There are less epochal figures as well, glowing with a special moral and value loveliness, whose presence uplifts us, whose example lures and inspires us.’— Robert Nozick

‘Values are organic unities; something is intrinsically valuable in accordance with its degree of organic unity. However, it does not follow that the realm of values itself exhibits high organic unity, that diverse and apparently conflicting values can be united in some higher unity or larger harmony. [Plato would say that the realm of values does exhibit a higher unity or harmony insofar as it is, in the beginning and in the end, so to speak, and to speak metaphysically, part of the Good.] The theme of the ineradicable plurality of values, of the conflict between different values that cannot all be realized, a theme presented in Antigone and later tragedies, has been subordinated in the history of philosophy to the theme or hope of the harmonious reconciliation of all values. Recently, however, the pluralism of values has received renewed attention.’ [This is true, but the pluralism of values does not rule out, in theory, the possible harmonious reconciliation of all values.] ’—Robert Nozick

‘A person who tracks bestness, who seeks value, will have to formulate her own package of value realization; she cannot simply “maximize” on the value dimension. This package need not be an aggregate, it can pattern and unify the diverse values it realizes. In thus patterning value, the person may emulate a previous pattern exhibited by a value exemplar, or described in some tradition, or she may create a new complex unity, sculpting the value contours of her life in an original, perhaps unique way. Some significant part of the vividness of characters we read about in fiction, history, or religious texts or scriptures is their individuality in (valuable) value contouring.’—Robert Nozick

‘We value being a unique self, and come therefore also to value the particular unique self someone is. Valuing that there is a unique self spills over to valuing, for itself, that unique self there is.’—Robert Nozick

‘[T]he perfectionist aspiration to self-development…to a harmoniously hierarchically ordered being [cf. here Plato’s distinguishing and ranking of the rational, spirited and appetitive parts of the soul]…[should not] be interpreted as a denigration of what one hopes to improve on or of others not so intent. If we are to strive for a state judged higher, then something also must be ranked lower: to judge something as less than the best need not involve any elitist contempt for it.’—Robert Nozick

‘It is not implausible to think we are elevated by others who are more developed than ourselves in their striving for harmonious hierarchical development and for a valuable life. We are aided and encouraged along our own path of development by their striving for self-development and purer feeling; contrast the effects on us of encountering those with a sour mixture of one-upmanship, self-aggrandizement, desire to dominate or destroy, and other festering emotions, the effects of wending our way and bending our attention, to their motivations and trajectories. Just as a cacophony of urban noise is an intrusion if your are trying to listen to a string quartet or compose your own, so a person in the course of his own self-improvement or development will want, if merely as a means, to help raise the developmental level of those around him (or else to move into an isolated community of like-spirited persons). He will want to help them along. Even if a person were able to maintain his level and rate of (spiritual) advance and development unperturbed by others around him [like Plotinus!], not dragged down by them no matter what their state, he would still lack the benefits of associating with others who are equally or more developed. First, there is the benefit of being helped along by good examples and good companions. We all know people, I hope, who bring out the best in us, people in whose presence we would be embarrassed to speak or act from unworthy motives, people who glow. In their presence we feel elevated. We are pushed or lured or nudged further along a path of development and perfection; rather, we are inspired to move ourselves along, in the direction shown. Second, there is the joy in encountering a like person, in the experience of the other and in the mutual recognition of the mutual joy. The most intense delights, surely, are these experiences, at least as they combine with, enrich, and transfigure other delights more frequently listed. One awful psychological deformity is the resentment of excellence, not merely the inability to delight or take pleasure in it—bad enough—but the envious desire for its absence. To avoid being the object of such envy, people will hide their own excellence and camouflage their delight in it. Not only does this deprive others of the encouragement of an example, and of the opportunity for happy mutual recognition, it also alters the person’s own experience. She does not simply feel the same delight only without expressing it; an unexpressed delight is not as delightful. Resentment and envy of moral and spiritual excellence is most awful. [….] At any rate, persons developing in value will not feel or dwell in such envy; they will seek out opportunities to share the joy of being on and moving along their path. They will aid others in their own (spiritual or developmental) advance, for the pleasure of their company. (In thus aiding, they will not focus their attention upon their own pleasure but rather upon what brings that pleasure—the developed state of the others.) There is a third reason for wanting other equally or more developed persons around: their appreciation is especially worth having. In a loving relationship with another adult, the worth of what they give, including themselves, depends partially upon their estimation of themselves—whether they give something they hold precious and valuable. [….] The developed or developing person will wish for like companions, for inspiring examples to aid him along his path, for joyous company, and for meaningful affirmation of his own worth. This is the opposite of the desire to be surrounded by submissive people less developed than oneself, the desire that they be less developed.’—Robert Nozick

‘The developed person will want to help perfect others; this is the most important aid he can give them. We want to find a way of living whereby our best energies and talents are poured out so as to speak to and improve the best energies and talents of others. We want to utilize our highest parts and energies in a way that helps others flourish.—Robert Nozick

‘[T]he investigation into what is worth our caring about is a quest for self-understanding, an attempt to make sense of our own valuational responses to the world.’—Elizabeth Anderson

‘[P]eople interpret and justify their valuations by exchanging reasons for them with the aim of reaching a common point of view from which others can achieve and reflectively endorse one another’s valuations. To judge that one’s valuations make sense is to judge that they would be endorsed from that hypothetical point of view. To be rational is to be suitably responsive to reasons offered by those attempting to reach that point of view.’—Elizabeth Anderson

‘[T]he grounds of a person’s reflectively held values (if she has any) lie in her conceptions of what kind of person she ought to be, what kinds of character, attitudes, concerns, and commitments she should have. I call such self-conceptions ideals. Ideals are objects not merely of desire but of aspiration. [….] Ideals give us perspectives from which to articulate and scrutinize the way we value things.’—Elizabeth Anderson

‘[M]oral development leads to self-identification and autonomous, self-directed living, but is associative as an interdependence based in a division of labor with respect to the realization of values. The self-fulfilling life of each person requires more values than he or she personally realizes and is dependent upon other for these values. The principle of this form of association is the complementarity of perfected differences. Accordingly this meaning of “autonomy,” if the term is to be applicable, must be consistent with interdependence. [This] means, not total self-sufficiency, but determining for oneself what one’s contributions to others should be and what use to make of the values provided by the self-fulfilling lives of others. To follow the lead of another person in a matter he or she understands better than we is not a lapse from autonomy into heteronomy but a mark of wisdom. [….] [T]he self here is conceived of as a task, a piece of work, namely the work of self-actualization. And self-actualization is the progressive objectivizing of subjectivity, ex-pressing it into the world. This recognition exposes as a fallacy the modern use of “objective” and “subjective” as mutually exclusive categories. Every human impulse in subjective in its origin and objective in its intentional outcome, and because its outcome is within it implicitly from its inception, there is nothing in personhood that is ‘merely subjective,’ that is, subjective in the exclusive sense. Narcissism (with which individualism is sometimes charged) is a pathology that tries to amputate from subjectivity its objective issue. It is real enough, and was a propensity of some romantic individualisms that judged experience by the occasions it affords for the refinement of the individual’s sensibilities. But the supposition that individualism is narcissistic subjectivism represents (again) a failure to recognize divergent kinds of individualism. For eudaimonistic individualism, it is the responsibility of persons to actualize objective value in the world.’—David L. Norton

‘[People] differ in temperament, interests, intellectual ability, aspirations, natural bent, spiritual quests, and the kind of life they wish to lead. They diverge in the values they have and have different weightings for the values they share. (They wish to live in different climates—some in mountains, plains, deserts, seashores, cities, towns.) There is no reason to think that there is one community which will serve as ideal for all people and much reason to think that there is not. [….] For each person, so far as objective criteria of goodness can tell (insofar as these exist), there is a wide range of very different kinds of life that tie as best; no other is objectively better for him than any other one in this range, and no one within the range is objectively better than any other.’—Robert Nozick

‘[Moral values] refer to things we consider worth cherishing and realizing in our lives. Since judgments of worth are based on reasons, values are things we have good reasons to cherish, which in our well-considered views deserve our allegiance and ought to form part of the good life. Universal moral values are those we have good reasons to believe to be worthy of the allegiance of all human beings, and are in that sense universally valid or binding. Moral values are meant for beings like us and intended to regulate our lives.



January 24, 1:51 PM   /   Agricultural Law   /   Back to the Land: A Greece-U.S. Comparison

A front-page feature in the New York Times a couple of weeks ago reported on a trend in Greece--a trend for people to get back to the land, back to agricultural livelihoods. Journalist Rachel Donadio links that trend to Greece's economic crisis and the fiscal austerity with which the government has responded. Of course, it's also become trendy in the United States (though not necessarily a widespread phenomenon) for young(ish) people to get back to the land, to take up farming of certain types, e.,g., organic, boutique. So I thought I would compare and contrast what is happening in Greece with what is happening in the United States. "Apples to apples" data are not available for the two countries, but a partial look at the who, what and why of "new" farmers is possible.


Greece: Donadio writes of an "exodus of Greeks who are fleeing to the countryside and looking to the nation's rich rural past a guide to the future." With Greek unemployment at 18% and as high as 35% for those between the ages of 15 and 29, the agricultural sector is bucking this trend, having added 32,000 jobs between 2008 and 2010. Significantly, "most of them [have gone to] Greeks, not migrant workers from abroad." While the story features two 30-something couples who have moved to the island of Chios ("closer to Izmir, Turkey than to Athens) to take up smallish agricultural enterprises, Donadio reports that the greatest increase in new farmers has been among those aged 45 to 65.
Donadio doesn't make a big deal of the distinction between agricultural entrepreneurs and farm laborers, though she mentions both in the story. (A Legal Ruralism post about this distinction is here.) Regarding the entrepreneurs, Donadio writes:
In Greece, as elsewhere in the Mediterranean, most families have traditionally invested heavily in real estate and land, which are seen as farm more stable than financial investments, and it is common for even low-income Greeks to have inherited family property.
Donadio quotes the president of a farm school in Salonika, where applications have recently tripled: "young people frequently come to him and say, 'I have two acres from my grandfather in such-and-such place. Can I do something with it?'"
Agricultural roots seem to have influenced the decisions of the two couples Donadio features, both of which moved to Chios, where they had family connections. One couple, trained as agriculturalists but working in other sectors in Athens until a few years ago, are growing edible snails for export. They used $50,000 in family savings to get started. The other couple are cultivating mastic from 400 trees in southern Chios. Neither couple has yet to turn a profit, and the mastic farmers have turned to ecotourism to supplement their income. The edible snail farmers will have their first harvest this year. Both couples expressed confidence in their undertakings, and one is quoted:
In big cities, there's no future for ... young people, the only choice is for them to go to the countryside or to go abroad.
The same can hardly be said of the United States, where the fiscal crisis that began unfolding in 2008 has not been as acute as in Greece. I doubt that many young Americans take up farming because they feel they have no choice. Rather, those set to inherit farms still take over from their parents because of attachment to the lifestyle and place. In addition, the newfound popularity of certain types of agricultural undertakings seems attributable to rising attention to where our food comes from--to locavore, vegan, and organic trends. My students and I have discussed these trends on Legal Ruralism here, here here, and here. A story in the Sacramento Bee in April, 2010 suggests that--as in Greece--those starting up small farms in the United States are typically urbanites and suburbanites drawn back to the land. (A related post is here). As in Greece, younger people in the United States are increasingly the ones drawn to these sorts of farming.
While Donadio reports that many Greeks have access to family land, the same cannot be said of the United States. A recent survey by the National Young Farmers Coalition found that access to land was a major obstacle to those desiring to farm in the United States, second only to the barrier presented by lack of access to capital.
Based on Donadio's story, it seems that those who have recently started farming in Greece include not only the youngish in their 20s and 30s looking for an out from the economic disaster, but also the middle aged. In the United States, farmers tend also to be an aging group. As of 2007, about 30% of U.S. farmers were 65 or older, and the age of principal farm operators was 57 years. According to a recent publication of the National Young Farmers' Coalition, one in four farmers will retire in the next 20 years. So, even as fresh blood is flowing into farming, the business/vocation remains dominated by the middle aged. What is not clear is the extent to which the middle aged--whether new to farming or not--engage in intensive production agriculture or in smaller-scale boutique and organic farms. Either way, it seems that the demographics of farmer/entrepreneurs in the two nations are similar. Another similarity between Greece and the United States is that agritourism (especially in relation to boutique agriculture) is helping keep farms out of the red. See earlier posts on Legal Ruralism here and here.
One distinction between Greece and the United States, however, may lie in who is doing the agricultural labor--versus the agricultural entrepreneurship. Donadio reports that most farm jobs in Greece are going to Greeks. In the United States, however, little doubt exists that immigrants do the vast majority of agricultural grunt work. Read more here, here and here.
Donadio makes no mention of what, if anything, the Greek government is doing to foster the back-to-the land movement. Of course, the USDA has several programs that seek to assist would-be farmers with obstacles to getting started, though the recent Young Farmers publication suggests that the programs are insufficient.
A final similarity is worth pointing out: what I label the "back to the land" movement is not subsistence farming in either the U.S. or Greece. These farmers are relying on markets for their products--and those markets appear to be very often associated with foodie trends and relatively affluent consumers. What better example of this than edible snails for export?
See another post about Greece that links agriculture to rural self-sufficiency here. Listen to yesterday's NPR story about Arizona farmers reclaiming land sold previously sold to land developers; that story notes that both established and new farmers are taking advantage of the land available--though the new and younger farmers are typically able only to lease, not to buy. A recent story about how the South African government is encouraging a new generation of farmers is here.
Cross posted on Legal Ruralism.



January 24, 8:20 AM   /   Ratio Juris   /   A Revolutionary Spiritual Praxis

Paul Wilson, translator of several of Václav Havel’s works, including his celebrated Letters to Olga (1983/1988), and one-time member of the underground band, The Plastic People of the Universe, has an eloquent and moving remembrance in the latest issue of the New York Review of Books:

[….] “[Havel’s] vision [was] based on a democratic politics underpinned by a strong civil society and rooted in common decency, morality, and respect for the rule of law and human rights; a politics that sought to transcend racial, cultural, and religious differences by articulating a ‘moral minimum’ that Havel believed existed at the heart of most faiths and cultures and that would provide a basis for agreement and cooperation without sacrificing the unique gifts that each person, each culture, and each ‘sphere of civilization’ could bring to enrich modern life. [....]

Like many great Czechs before him, Havel insisted on the importance of truth, but with a difference. ‘Truth and love,’ he was fond of saying, ‘must prevail over lies and hatred.’ He was often ridiculed for what seemed like a Hallmark sentiment (‘Why love?’ people asked), but he defended the slogan by referring to one of his greatest insights: truth, by itself, is a malleable concept that depends for its truthfulness on who utters it, to whom it is said, and under what circumstances. As a playwright, Havel turned this insight into a dramatic device: in most of his plays, the main characters constantly lie to one another and to themselves, using words that, in other circumstances, would be perfectly truthful. Truth by itself is not enough: it needs a guarantor, someone to stand behind it. It must be uttered with no thought for gain, that is, in Havel’s words, with a love that seeks nothing for itself and everything for others.*

We are close to religious territory here, and indeed, in the week of leave-taking in Prague, I heard many discussions about Havel’s true beliefs. Was he a Catholic and, if not, was the high mass in St. Vitus’s Cathedral the right way to send him off? Yes, replied some, he had been raised a Catholic and been confirmed as a young man. Sister Veritas said she felt that Havel was “with God” more profoundly than many observant Catholics, but she admitted that he had neither asked for nor received the last rites before he died. One of his last conversations was with the Dalai Lama, whom he considered a spiritual guru. But in the circumstances, such questions seemed inconsequential, even scholastic. Havel was a deeply spiritual man who expressed his spirituality, if that is the right word, almost entirely through his actions in the world.” [….]

Hat tip to Mark Edwards, who let me know of this essay (I’ve yet to receive my hard copy of the NYRB) in his latest installment at Concurring Opinions: “Vaclav Havel, Part V: Prison, Torment and Temptation.”

Image: (Courtesy of the NYRB) Tomki Němec—Václav Havel visiting Ruzyně Prison, where he had once been incarcerated, Prague, March 1990.



January 22, 6:05 PM   /   Ratio Juris   /   On the Etiology of What Economically Ails Us (updated)

At New APPS: Art, Politics, Philosophy, Science, Mark Lance writes:

“There is an important article in today’s NYT. What is fascinating about this account of Apple’s iphone production in Asia is not the usual left criticism of Asian working conditions. That is mentioned. Work is structured in an authoritarian manner, for low pay, and with long hours. But a good case is made here that this is not the main issue. Rather, the US simply lacks the economic and educational infrastructure to get the job done at all.

It would be nice if the NYT would delve into the causes of all this. They note that we lack the relevant numbers of workers with the relevant skills, that we lack huge amounts of manufacturing infrastructure, that what manufacturing we have has not kept up with the flexibility needed for 21st century production. They also note that a huge middle class that might have been trained in the relevant sorts of skills are employed in service, financial, and other auxilliary sectors of the economy. What they don’t mention is that public decisions led to this. There are no doubt many decisions over the last 40 years that left us in such a situation, but I’d like to highlight one: military spending. The US--especially since the second half of the Carter administration—has diverted enormous resources from civilian infrastructure to military spending, regularly spending more on its military than the rest of the world combined. One occasionally hears about how this level of spending contributes to deficits and wars, or how it facilitates imperialism and authoritarian regimes abroad, but far less does one hear about how it leads to a country that is incapable of producing actual goods.” [….] *

My response:

However sympathetic I am to the tenor and salutary intentions of this piece, I’m not sure that military spending, as unconscionable or unjustifiable as it may be, is responsible in the first instance for “a country that is incapable of producing actual goods.” And I truly doubt the veracity of the claim (or at least it’s arguable) that “the US simply lacks the economic and educational infrastructure to get the job done at all.” In any case, the National Security State that developed in the midst of material affluence after World War II in the form of “military-industrial complex” has not changed. What has changed, however, are the terms and conditions of capitalist globalization which, roughly, began to appear in the period between 1965 and 1973, that, as David Harvey explains in his seminal work, The Condition of Postmodernity (1990), “was one in which the inability of Fordism and Keynesianism to contain the inherent contradictions of capitalism became more and more apparent.” In the early 1970s, we see the lineaments of a new capitalist logic of “flexible accumulation” (with regard to labor markets and processes, products and services, and patterns of consumption), a logic that in many ways is playing itself out today, one in which has helped to improve the quality of life (less true poverty, although recalcitrant forms of inequality) in many parts of the so-called developing world but has altered the terrain of capitalist democracies in the affluent Northern hemispheric countries.

If one accepts the principal parts of this historical narrative, as I do, than one is not at all surprised by current events and does not believe there’s too much national economies can do (e.g., by way of ‘public decisions’) in the present configuration of economic forces, to alter the course of events in any substantive and long-term fashion. At best perhaps, that is, with a renewed political will and courage, we can hope to salvage the welfare state (which may be why Tony Judt wrote, in Ill Fares the Land [2010], about the Left today simply ‘conserving valuable pasts’ with a ‘defensive’ Social Democratic project), but I fail to see how domestic politics (apart from ex post facto efforts at regulation) can constrain or alter rather uninhibited capital flows that make for the situation Lance describes. In other words, in the first place it’s a story about the logic of capitalist forces trumping democratic decision-making: after all, it’s often labor market conditions that determine where capital (so to speak) will concentrate itself. As Joshua Cohen and Joel Rogers make plain in On Democracy (1983), the nature of “capitalist democracy” places structural constraints on both the articulation and satisfaction of interests within the system. With regard to the latter, for instance, and owing to their control of investment, “the satisfaction of the interests of capitalists is a necessary condition for the satisfaction of all other interests in the system,” which means “the welfare of workers remains structurally secondary to the welfare of capitalists,” a fact we conveniently forget in times of economic abundance and low unemployment but is resurrected in the wake of the cycles, crashes, and panics endemic to capitalism. The decisions of capitalists are directly responsible for the well-being of workers, and thus we see the “interests of capitalists appear as general interests of the society as a whole, [while] the interests of everyone else appear as merely particular, or ‘special.’”

Only when we’re able to transcend the socio-economic and political conditions intrinsic to “capitalist democracy” (today’s postmodernist neoliberalism) will we be able to imagine a world in which “public decisions” are no longer invariably distorted or trumped by the turbo-capitalist economic forces in the so-called private sector (an egregious euphemism). In any case, I don’t worry about us producing actual goods so much as our distributively unequal capacity to consume goods essential to the satisfaction of “basic needs” alongside the opulent displays of conspicuous consumption by the upper classes (the allure of which still shapes the dreams of many in the other classes). One world is being created, as Meghnad Desai reminds us, but by the forces of market-led globalization (hence the WTO is displacing the UN/IMF/World Bank as the premier institution for global governance). I’m not saying we shouldn’t, let alone can’t, alter our domestic economic priorities such that spending is directed toward things like infrastructural projects or even actual goods, but given the nature of the National Security State (see, for example, Gary Wills’ Bomb Power: The Modern Presidency and the National Security State [2010]), to which both major parties are committed, in conjunction with this latest phase of capitalist globalization, the prospects for same, alas, appear rather bleak: witness the dismantling of the liberal welfare regime in this country and the cumulatively corrosive assaults on European corporatist and social democratic welfare regimes. It seems we’re consigned to fighting, for the near term at least, purely rearguard actions.

* I've corrected a couple of typos in the original.

Update:

Correspondence with Mark Lance prompts me to further explain why that, even if one accepts the proposition “that there is a massive difference in both manufacturing infrastructure and level of manufacturing-relevant education between major Asian countries and the US,” which I do not, that the cause of this can be explained by “public decisions,” foremost among them being the increased level of defense expenditures. First, as I say, I don’t believe there to be a “massive difference in both manufacturing infrastructure and level of manufacturing-relevant education between major Asian countries and the US,” even if there are significant differences and especially in certain manufacturing sectors. I don’t have the empirical evidence ready-at-hand but we can leave that disagreement to the side and for the sake of argument accept the proposition as true. Now, what explains it? I would argue that cumulative public decision making, involving defense expenditures or other legislative and public policy directives and initiatives with bearing on the economy are rather beside the point, or at least impotent in the face of the economic forces of the current phase of capitalist globalization.

Capital forces in the form of corporate decision-making, investment, the search for lower production and labor costs, and so on are global in nature: there’s nothing intrinsic to “Asian capitalism” that alters that fact. As long as labor market conditions (including fairly stable social conditions, and even authoritarian politics, and such things as corruption notwithstanding) are more favorable in Asian countries, capital will move there and in fact has moved there: it is that which accounts for disparity in manufacturing infrastructure. Capitalism has, of course, different conditions and effects across the globe, but those are tending toward a “leveling” on many fronts (for instance, and generally speaking, ‘our’ collective ‘affluence’ is diminishing, while ‘their’ well-being is increasing, even if there are some classes more than others that are the immediate and principal beneficiaries of increased capital flows). There’s a price to be paid for admitting more countries to the banquet of wealth-production, and capitalists cannot completely control the various markets or overcome competition, hence they’re driven to make profit and accumulate. It is that which is the principal causal variable in explaining the state of this country’s economy. Nation-state governments no longer control economies as they “did in the halcyon quarter-century of the Golden Age of capitalism.” In Desai’s words,

“The influence of capital—either as portfolio finance or as direct investment—the hegemony of financial markets, the increasing penetration of trade, have been experienced by all the worlds: First, Second and Third. Indeed, this numerical categorization is now otiose. The benefits and costs of capitalism fall symmetrically—though not equally—on all parts of the world. For the first time in two hundred years, the cradle of capitalism—the metropolis, the core—has as much to fear from the rapidity of change as does the periphery.”

It is precisely the effects and by-products of this “rapidity of change” that, in our case, has “[led] to a country that [may at times be] incapable of producing actual goods.” We have to remind ourselves why capitalists, in the form of transnational corporations or foreign direct investment and so forth, went abroad or to the “developing” world in the first place: in search of cheaper costs of production and labor most notably. So, even if, say, defense spending had not taken off as it did, even if it were considerably less than it is today (and some of that money were directed to education), I don’t see how this would have altered the fundamental thrust of the capitalist globalization. In terms of the affluent nation-states, the primary causal variable is found in the proposition that globalization has meant an international movement of goods, capital and labor which “has increased the inequality and/or volatility labor earnings in advanced industrial societies while constraining the ability of governments to tax the winners from globalization to compensate workers for their loss.” In the face of this basic economic fact, domestic governments are severely constrained in their economic decision-making.

Why does the threat of “capital strikes” remain an effective tool in wage negotiations? Because it’s a credible threat, one carried successfully carried out on occasion (both regionally on the domestic plane and globally) owing to increased capital mobility, and the principal reason workers are willing to make concessions at the bargaining table and accept a lower share of the rent. Absent a social democratic model of development in the Asian countries, I don’t see this situation changing. It’s the impact of globalization in the rich countries, in the form of capital mobility, that explains the decline of manufacturing infrastructure in this country and the rise of manufacturing infrastructure elsewhere, not the simply the cumulative historical impact of “public decisions,” about defense expenditures or other budgetary matters. The relatively free flow of goods, capital, and labor does “create opportunities for enhancing the welfare of the poor in poor and middle-income countries,” and that, I would think is a relatively good thing, despite the immediate impact of increased inequality and income insecurity found in the richer countries. It is therefore a good thing that we find an increased ability on the part of “developing” countries to export goods to the “developed” countries. It is therefore in many respects a good thing for people in these countries that transnational corporations are contributing to the development of an industrial infrastructure, even though their profit often represents merely the ability to take advantage of cheap wages and sub-standard working conditions. The increased rate of growth in foreign direct investment reflects the ability to exploit the comparative revenue-productivity of labor in the developing world, be it in Asia or elsewhere. I can’t fathom how any municipal legislation or policy initiative can alter these global economic trends and forces such that transnational firms, for example, come to decide to reverse their preferences on this score.



January 21, 10:06 PM   /   Ratio Juris   /   “Is Art a Superstition, or a Way of Life?” (Part 4)

Please note: In the final installment of this series, I will attempt to highlight what I take to be the most compelling propositions of Coomaraswamy’s argument. I also hope to bring to the discussion later works in aesthetics and philosophy of art which treat some of the themes that concerned Coomaraswamy or capture some of the spirit of his critique of the condition of contemporary art and its foremost apologetic theories and ideologies that serve as both cause and effect of that condition (this being not so much the fault of art qua art, but something directly attributable to a post-modern civilizational ethos fashioned in the image of high technology and turbo-capitalism.

Here are Parts 1, 2, and 3.

“It is taken for granted that the artist is always working ‘for the good of the work to be done;’ from the coincidence of beauty with perfection it follows inevitably that his operation always tends to the production of a beautiful work. But this is a very different matter from saying that the artist has always in view to discover and communicate beauty. Beauty in the master craftsman’s atelier is not a final cause of the work to be done, but an inevitable accident. And for this reason, that the work of art is always occasional; it is the nature of a rational being to work for particular ends, whereas beauty is an indeterminate end; whether that artist is planning a picture, a song, or a city, he has in view to make the thing and nothing else. What the artist has in mind is to do the job ‘right,’ secundum rectam rationem artis: it is the philosopher who brings in the word ‘beautiful’ and expounds its conditions in terms of perfection, harmony, and clarity. A recognition of the fact that things can only be beautiful in kind, and not in one another’s kinds, and the conception of the formality of beauty, bring back again to the futility of a naturalistic art; the beauties of a living man and of a statue or stone man are different in kind and not interchangeable; the more we try to make the statue look like a man, the more we denature the stone and caricature the man. It is the form of a man in a nature of flesh that constitutes the beauty of this man; the form of a man in a nature of stone the beauty of the statue; and these two beauties are incompatible.

Beauty is, then, perfection apprehended as an attractive power; that aspect of the truth for example which moves the will to grapple with the theme to be communicated. In medieval phraseology, ‘beauty adds to the good an ordering to the cognitive faculty by which the good is known as such;’ ‘beauty has to do with cognition.’ [….] Beauty is at once a symptom and an invitation; as truth is apprehended by the intellect, so beauty moves the will; beauty is always ordered to reproduction, whether a physical generation or a spiritual regeneration. To think of beauty as a thing to be enjoyed apart from use is to be a naturalist, a fetishist, and an idolater. [….]

The intelligibility of traditional art does not depend on recognitions but, like that of script, on legibility. The characters in which this art is written are properly called symbols; when meaning has been forgotten or ignored and art exists only for the comfort of the eye, these become ‘art forms’ and are spoken of as ‘ornaments;’ we speak of ‘decorative’ values. Symbols in combination form an iconography or myth. Symbols are the universal language of art; an international language with merely dialectic variations, current once to all milieus and always intrinsically intelligible, though no longer understood by educated men, and only to be seen or heard in the art of peasants. The content of symbols is metaphysical. Whatever work of traditional art we consider, whether a crucifix, Ionic column, peasant embroidery, or trappings of a horse, or nursery tale, has still, or had, a meaning over and above what might be called the immediate value of the object as a source of pleasure or necessity of life. This implies for us that we cannot pretend to have accounted for the genesis of any such work of art until we have understood what it was for and what it was intended to mean. The symbolic forms, which we call ornaments because they are superstitious for us, are none the less the substance of the art before us; it is not enough to be able to use the terms of iconography freely and to be able to label our museum specimens correctly; to have understood them, we must understand the ultimate raison d’être of the iconography, just why it is and not otherwise.

Implicit in this symbolism lies what was equally for artist and patron the ultimately spiritual significance of the whole undertaking. The references of the symbolic forms are as precise as those of mathematics. The adequacy of the symbols being intrinsic, and not a matter of convention, the symbols correctly employed transmit from generation to generation a knowledge of cosmic analogies: as above, so below. Some of us still repeat the prayer, Thy will be done on earth as it is in heaven. The artist is constantly represented as imitating heavenly forms—‘the crafts such as building and carpentry which give matter in wrought forms…take their principles thence from the thinking there’ (Enneads, V. 9). The archetypal house, for example, repeats the architecture of the universe; a ground below, a space between, a vault above, in which there is an opening corresponding to the solar gateway by which one ‘escapes altogether’ out of time and space into an unconfined and timeless empyrean. Functional and symbolic values coincide; if there arises a column of smoke to the luffer above, this is not merely a convenience, but also a representation of the axis of the universe that pillars-apart heaven and earth, essence and nature, and is itself although without dimensions or consistency the adamantine principle and exemplary form of temporal and spatial extension and of all things situated in time or space. [….]

Let us now remind ourselves that the artist is also a man, and as a man responsible for all that his will consents to; ‘in order that a man may make right use of his art, he needs to have a virtue which will rectify his appetite.’ The man is responsible directly, as a murderer for example by intent if he consents to manufacture adulterated food, or drugs in excess of medical requirement; responsible as a promoter of loose living if he exhibits a pornographic picture (by which we mean of course something essentially salacious, preserving the distinction of ‘obscene’ from ‘erotic’); responsible spiritually if he is a sentimentalist or pseudo-mystic. [….] The doctrine of art for art’s sake implies…a sacrifice of humanity to art, of the whole to the part. It is significant that at the same time that individualistic tendencies are recognizable in the sphere of culture, in the other sphere of business and in the interest of profit most men are denied the opportunity of artistic operation altogether, or can function as responsible artists only in hours of leisure when they can pursue a ‘hobby’ or play games. [….]

Under present circumstances, then, art is by and large a luxury: a luxury that few can afford, and one that need not be overmuch lamented by those who cannot afford to buy. The same ‘art’ was once the principle of knowledge by which the means of life were produced, and the physical and spiritual needs of man were provided for. The whole man made by contemplation, and in making did not depart from himself. To resume all that has been said in a single statement—Art is a superstition; art was a way of life.”—Ananda K. Coomaraswamy, Christian and Oriental Philosophy of Art (New York: Dover, 1956 [originally published in 1943 under the title, Why Exhibit Works of Art?])



January 20, 2:35 PM   /   Agricultural Law   /   Call for Papers: Rural Sociological Society's 75th Annual Meeting

I'm planning to attend the Annual Meeting of the Rural Sociological Society (RSS) for the fifth time this year--and to participate in the organization's celebration of its 75th anniversary. The meeting will be July 26-29 in Chicago, right back at the Palmer House Hotel where the inaugural meeting was held in 1937. Ag law folks may know that 2012 just happens also to be the 150th anniversary of the founding of the U.S. Department of Agriculture.
Participating in RSS meetings has proved an important source of ideas, inspiration and contacts in relation to my scholarship about the intersection of law with rural livelihoods. In fact, I often declare RSS my "favorite meeting of the year" because everyone there cares about rural people and places. Taking rural livelihoods seriously is the shared foundation. As readers of the Ag Law Blog will appreciate, such is hardly the case at most law prof conferences. Rather, attending law prof meetings (even warm and fuzzy ones like Law and Society's Annual Meeting) often reinforces the sense that I am writing my way into the very obscurity associated with rural people and places. "Rural people, you say ... how interesting, even exotic, but that has nothing to do with me and my scholarship." By extension, the message seems to be that rural people and places have nothing to do with anything that matters. And so the legal academy steams forward, oblivious to its metro-centrism.
With that endorsement of RSS, I am hoping to attract some ag law scholars to this year's RSS meeting. I'm getting lonely being the only lawyer at RSS, but that's not the only reason you should attend. Like me, I suspect ag law folks have a lot to learn from rural sociologists. In particular, ag law profs may find of special interest sessions organized by the Sociology of Food and Agriculture Research Interest Group. I have presented my work at RSS every year I have attended, and I have found that it fits nicely on the panels of mostly rural sociologists. Plus, the meeting has become more cross-disciplinary in recent years, with scholars from geography, anthropology, and various branches of the humanities also participating.
My final endorsement is based on my attendance of last year's "pre-conference" of the RSS annual meeting in Boise. I participated in one of many field trips on offer, traveling with other scholars to Idaho's Magic Valley to visit a dairy farm. (Photos top and left of field trip, Jerome, Idaho. Yes, those are rural sociologists in a milking parlor). Did you know that Idaho is now the third largest milk-producing state in the nation? Field trip participants considered a number of aspects of the growth of the dairy industry in the Magic Valley: environmental, labor, immigration. Ag law scholars would have felt right at home.
Here's the call for the 75th meeting, with a February 15, 2012 deadline for abstracts and proposals:
Increasing inequality of wealth and income in the United States is a symptom of a deeper problem of inc
reasingly concentrated power wielded by distant actors with no sense of commitment to place. Corporate consolidation and the federal government’s commitment to the fetish of free trade have created an economic system disembedded from social life as lived by most citizens. The twin processes of consolidation and separation threaten the social contract upon which our society is based. This contemporary legitimacy crisis has spawned a curious ideological consensus between Tea Party advocates and Progressives who share a common fear of the big and the distant.

Inequalities exist within and between communities and regions, and of course between nations. Everywhere we simultaneously see conspicuous displays of wealth and landscapes of despair. Over the past half century and more, rural sociologists have chronicled the steady decline experienced by many parts of rural America due to decisions made far away in corporate boardrooms and legislative bodies. Parallel changes have affected urban industrial centers through government acquiescence to or even encouragement of corporate disinvestment.
Reform of this economic system is made difficult by the mutual dependence that big corporations and big government have upon each other.
Resistance to distant forces is becomes increasingly visible as each neighborhood fights a big box development, as each community invests in a local food system, and each time a group of citizens bands together to fight threats to environmental and public health which governments are happy to permit as the price of economic growth. Higher energy prices and technological developments are likely to create new opportunities to build local economies around local needs and resources.
The movement towards localism is inspired by the idea that the economy is something we participate in, not something that is done to us. In this conference, we encourage participants to explore the potential that localism has to create vibrant local economies that offer not only a market alternative but a values-alternative to our contemporary economic system.
Go here to submit your abstract.
Finally, I am hoping to organize a round table of legal scholars at this year's meeting (assuming we can get a critical mass to the meeting) to have a discussion about what a "law and rural society" thread of scholarship might look like. After all, Law and Society is a flourishing sub-discipline. By carving out a scholarly space for legal scholars interested in food, agriculture and the rural, we are likely to reveal Law and Society's metronormativity--just like the establishment of the Rural Sociological Society's founding in 1937 highlighted the implicit metro bias of the American Sociological Association.
Cross-posted to Legal Ruralism.



January 20, 2:19 PM   /   Ratio Juris   /   Iran, Israel, and Nuclear Weapons



At Opinio Juris, Kevin Jon Heller writes:

“It’s difficult to accuse these guys of being soft on Tehran, so it’s hard to quibble with their conclusion:

The intelligence assessment Israeli officials will present later this week to Dempsey indicates that Iran has not yet decided whether to make a nuclear bomb.

The Israeli view is that while Iran continues to improve its nuclear capabilities, it has not yet decided whether to translate these capabilities into a nuclear weapon – or, more specifically, a nuclear warhead mounted atop a missile. Nor is it clear when Iran might make such a decision.

This statement simply reinforces my argument that killing the Iranian nuclear scientists was an act of terrorism under the Terrorist Bombing Convention. Although I think killing the scientists would have been illegal under IHRL [International Human Rights Law] even if they had been helping to build a nuclear weapon, given that by all accounts it still would have taken Iran years to complete it, the counterargument wouldn’t be completely unreasonable. But If Iran is not even trying to build a weapon at this point, as Israel has apparently concluded, it is simply impossible to argue that killing the scientists was lawful targeted killing under IHRL.”

My comment: And now we can move on to a discussion of Israel—alongside India and Pakistan—having never signed the Nuclear Non-Proliferation Treaty (NPT), Israel alone among nuclear-weapons states having never publicly acknowledged their nuclear arsenal nor openly demonstrated their nuclear capability. As Avner Cohen writes in The Worst-Kept Secret: Israel’s Bargain with the Bomb (2010), “In Israel, to this day, the gap between nuclear conduct and basic democratic norms of open debate, the public’s right to know, public accountability, oversight, and transparency remains vast.”



January 18, 5:55 PM   /   Ratio Juris   /   A Model for Qur’ānic Interpretation & The Qur’ān: A Select Bibliography

Perhaps some readers of Ratio Juris would be interested in this:

A Model for Qur'ānic Interpretation & The Qur'ān: A Select Bibliography 



January 18, 3:05 PM   /   Agricultural Law   /   Law & the Future of the Food Movement

Last month, Emily Broad Leib, Senior Clinical Fellow in the Health Law and Policy Clinic at Harvard Law School spoke at a TEDx forum on food policy.

Well-crafted food policy should fulfill a range of goals, including increasing access to healthy foods, improving economic development for small producers, reducing obesity and diet-related disease, and increasing food security. 
Professor Leib discusses the role that lawyers (and law students) can play in developing food policy and encourages law schools to get involved.

Here is her excellent presentation -



January 16, 8:00 PM   /   Ratio Juris   /   Martin Luther King, Jr.

At Concurring Opinions, Frank Pasquale has kindly provided us with appropriate links in honor of today’s holiday in memory of Martin Luther King, Jr.: Martin Luther King Day Links.



January 15, 5:02 PM   /   Ratio Juris   /   Existentialism, Phenomenology, and Intellectual Responsibility: The Playwright & The Philosopher

Mark Edwards has a wonderful four-part (to date) series of posts on the late playwright, essayist and dissident intellectual Václav Havel ( (1936-2011) up at Concurring Opinions: Parts I, II, III, and IV. Havel was also the last president of Czechoslovakia (1989–1992) and the first President of the Czech Republic (1993–2003). I wrote a memorial post on Havel here. “The Philosopher” in the title is Jan Patočka. (Yours truly comments on a couple of the posts.)  

The image: On May 29, 1979, StB undertook a major police action against VONS members, subsequently ten of them were arrested and taken into custody. VONS is the Czech acronym for Výbor na obranu nespravedlivě stíhaných (Committee for the Defence of the Unjustly Persecuted):

“The committee was founded on April 27, 1978, by a group of Charter 77 signatories with the aim of following cases of persons facing various forms of state persecution, from police harassment to unjust prosecution in courts of law. Its members helped individuals facing persecution with obtaining legal representation and acted as mediators in acquiring assistance of a financial or other nature. Observing legal formalities, they addressed their communiqués to the Czechoslovak authorities, calling on them to take steps to rectify injustices perpetrated against individuals in the cases monitored. They also passed reports on the cases monitored to entities and persons abroad, from where this information was reported back to Czechoslovakia via the radio stations Radio Free Europe, Voice of America and the BBC. A number of VONS members were persecuted by the police and justice system for their activities, the most well known case being the legal process against six of its members in 1979. The vast majority of VONS communiqués were published in the samizdat bulletin Informace o Chartě 77 (Information on Charter 77). The Committee for the Defence of the Unjustly Persecuted was also active after November 1989, when it focused on amending the criminal code, calming the stormy situations in the prisons at the time, as well as, for example, on preparing a general amnesty and rehabilitation laws. Members of VONS also made efforts to purge the judiciary, but with minimal success. At their meeting of July 3, 1996, VONS members decided to suspend the activities of the committee for an indefinite period.”



January 12, 6:11 PM   /   BioLaw: Law and the Life Sciences   /   Innovation Incentives Part 3: Combining Innovation Index and Product Cluster Models

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 3

Editor's note: This is the third installment of a three-part series.

In Parts 1 and 2, we learned that it is both possible and valuable to import empirical scientific methods typically used in the hard sciences to the study of law. In fact, in our analysis of patent law and policy we can move beyond patent valuation to assess how and indeed whether a given piece of law or policy is working in conjunction to its so-called original policy intent. This includes the assessment of innovation within the context of the patent bargain, and whether governments that have accepted linkage laws are being rewarded in their twin policy goals of producing more new and innovative drugs and facilitating timely generic entry. Put another way, can we assess using the new tools of empirical legal research whether, as Senator Hatch put it at the time the U.S. linkage legislation came into force, the public is in fact “receiving the best of both worlds - cheaper drugs today and better drugs tomorrow.”

We can attempt to address this possibility using the innovation index discussed in Part 2 in combination with 3-D spatiotemporal models such as those used in the medical sciences. Over the last few decades, these models have been used increasingly for studying protein, DNA, RNA, and other structure-function relationships, including using x-ray and other crystallography techniques. Consistent with their use in medicine, 3-D legal models can be used to construct data for both descriptive (structural) and prescriptive (functional) law-making and law-reform purposes.

Read the rest of this post . . . .For example, in our Northwestern study, we developed a 2-D model of identifying patents in relation to “new and innovative” drugs and “follow-on” drugs that tracked the functional and temporal evolution of drug forms and associated patents over time. The example below is for the combination of Salmeterol and Fluticasone into one of several available forms of Advair®. We referred to this technique as a “patent tree” method and used it specifically to identify legally-related drug forms, associated patents, and patent types.

Fig. 1. Example of Convergent Patent Tree Analysis for Forth Generation Product Advair Diskus.®Patents were identified using the specific and general search strings described in our Berkeley study. In addition to quantifying patents per drug, the patent tree method allows assessment of how specific drugs evolve into related drug forms or (in this case) drug products representing combinations of known drugs. In addition, the patent tree analysis allows for identification of relevant patent types based on the classification nomenclature described in the Northwestern study. Finally, the patent tree analysis provides data relating to drug development, but also on the type of patents selected by pharmaceutical companies for listing on the patent register in order to prevent generic entry.
This method can be extended, as shown below, to identify “product clusters.” In particular, the patent tree method can easily be expanded to include patents listed on the patent register under linkage law, and a diagonally increasing axis of cumulative spatiotemporal growth. The resulting model represents a constellation of legally and functionally related new and follow-on drug forms and regulatory approvals, patents associated with these drug forms, the fraction of total patents listed on the patent register in order to slow down generic entry under linkage laws, and how each of the data classes relate to one another over time.

Fig. 2 Product Cluster-Based Model of Drug Development.Product clusters begin at some point in time with the first new and innovative drug (●; NCE) and associated originating patent (●). With time, and vetting by the market and regulators, further follow-on drug approvals (●) and patents (●) are granted within the cluster, and an increasing number of these patents are listed on the patent register (●). Listed patents can be used increasingly over time to prohibit generic entry not only on the originating new and innovative drug, but also on all drugs in the cluster that are deemed under law to be relevant to the originating drug.
We are now in a position to take our 2-D product cluster model above, first reported in 2011, and combine it with the innovation index depicted in Part 2 of this series, reproduced below for convenience.

Fig. 3. Innovation Index Data for Total Approval Cohort. Bar graphs showing the number of total approvals expressed as a function of the level of innovation (LOI) before (a) and after (b) of generic approval data. c Brand approvals expressed as a function of LOI. Solid line is a fit of the data to a single exponential function. d Cumulative normalized brand approvals expressed as a function of LOI. Solid line is fit using a sigmoidal function.
The combination of the drug nomenclature, product cluster and innovation index described in Fig. 4 yields a potentially new way of looking at the impact of regulatory and market incentives on drug development by multinational firms, As shown clearly by the data in the Boston study, this clearly includes both brand-name firms and generic firms, as both are pursuing cluster-based models of drug development. The resulting analytical model focuses on drug development driven by purposeful policy, and cumulative vetting of serial products by regulators and the market.

Described in detail in a forthcoming book, drug clusters denoted ‘on deck’, ‘at bat’, and ‘home run’ represent a theoretical mock-up of how drug clusters grow in time from a spatiotemporal perspective. In this model, product-patent clusters begin their life as single-drug products or small groupings at the most innovative end of the index and, with increased vetting of products in the cluster over time by regulators and the market grow in scope to encompass an increasing number of products and patents. As this occurs, the cluster may be anticipated to ‘swing up and to the left’ of the innovation index, moving from a high level of innovation with a low number of patents and listed patents to first a moderate and then a much lower level of innovation but with greater spatiotemporal characteristics. The model shown here is for 2,087 drug approvals over an eight year study period; similar results have been obtained using patents and chemical components.

Fig. 4. Combining Innovation Index and Product Cluster Models to Study Portfolio-Based Drug Development and Hedging.Product clusters are hypothesized to begin life at the most innovative end of the spectrum, with few patents and a small or negligible number of listed patents. Over time, and increased vetting by regulators and the market, the cluster expands to include more products, patents and listed patents but, as a whole becomes less and less innovative. The desired end point (the “home run”) is a substantial but low level cluster with numerous products, patents and listed patents, and the widest scope of market exclusivity and cumulative patent protection. Prior to this point, clusters are “at bat”, as they reach a critical state prior to moving into an expanded spatiotemporal state or merely “on deck” as firms await critical regulator and market vetting.
An important observation with regard to product-patent drug clusters is that as a given cluster grows spatiotemporally over time, it grows not only in scope but also in the scale of the interrelatedness of its functional components over time.

As noted in 2001 by Kingston and later by Polk & Parchomovsky and, notably, the EC Pharmaceutical Sector Inquiry, the strength of patent portfolios and related product clusters from an intellectual property law perspective is “greater than the sum of its parts”. This “more is different” element, originally described in 1972 by PW Anderson, is characteristic of complex systems, including complex legal systems such as those described by JB Ruhl and many others in the mid-1990s. As noted in Part 1, we have referred to the complex multidirectional interrelationships and interdependencies between drug development, drug regulation and intellectual property law in our previous McGill and Berkeley studies as a regulated Therapeutic Product Lifecycle, or rTPL.

Of interest, our data show that the profit of a given molecule is strongly related to the number of patents, regulatory approvals, the number of patents listed on the register, and the range of drugs and regulatory approvals that are legally related but separated by only very minimal changes to existing uses and chemistry. This is true even for drugs thought be innovative such as those with First in Class and New Active Substance (New Chemical Entities), owing to regulatory loopholes.

Somewhat surprisingly, in light of global innovation policy over the last 50 years, the greater the number and scope of these metrics the lower is the calculated level of innovation of a basket of drugs in a product cluster. As market and regulator vetting increases with time, one sees generally (1) more patents, regulatory approvals, fractional patent listing, patent classifications per marketed drug, (2) a greater follow-on-to-new drug ratio in the cohorts studied, and (3) greater profitability for less innovative drugs.

Indeed, drug clusters driven by line extension, or follow-on, drugs are proving to be very profitable. For example, we found that the vast majority of approval, patenting and chemical development activity associated with brand pharmaceutical products is directed to the development of Me Too drugs, in particular follow-on Me Too drugs. Of the top 25 most profitable drugs in 2006, 48% (12) were line extension Me Too drugs. The combined sales of these drugs were US $45.7 billion dollars. Follow-on First in Class drugs represented 28% of the top 25 selling drugs, and 7 of the top 15 selling drugs. Profit on this group of drugs was US $39.7 billion dollars in 2006.

Combined, follow-on Me Too and First in Class drugs accounted for 19 of 25 of the most profitable drugs, with total sales of US $85.5 billion in a single year.

From a "science of law" perspective, a major advantage of the rTPL and product cluster models is that there is, in fact, considerable empirical evidence available for study for all interested parties. This includes the various types of new and follow-on drugs, patents, patent classifications, listed patents, related litigation, as well as the relation of these metrics to one another over time. This wide array of empirically observable metrics and the observation that they change over time sets up the possibility that, akin to protein folding and X-ray crystallography models, the data can be expressed in 3-D spatiotemporal form.

Indeed, the goal of our empirical work over the last four years involving new and follow-on drugs, patent trees, patent types, WHO Anatomical Therapeutic Classification (ATC) data, litigation data, the innovation index, and product cluster model is to convert the cumulative data into 3-D formats used in the medical sciences. For example, the protein-RNA model presented below underscores the utility of 3-D “rotational” models to both identify and quantify the complex structural and functional characteristics in a given network of biological components, here those between an RNA strand and protein components in the context of Multiple Sclerosis.

Fig. 5. Medical Sciences Template for Rotational 3-D Spatiotemporal Models of Cluster-Based Drug Development. From: Joint Evolutionary Tree Method for Study of MS.

As discussed previously, rotational 3-D drug product-drug patent cluster models would be particularly useful to policy-makers and law-makers in order to enable visual and numerical quantification of the impact of intellectual property law on drug development, generic entry, and access to essential medications in the same manner that one might look at a car from behind (highlighting the ‘gas tank,’ or original drug product and associated patent tandems) as well as from the side (from the rear to the front of the vehicle, underscoring how and when approvals, patents, and listed patents increase over time with market and regulator vetting).

In this manner, extrapolating the empirical techniques conventionally used in the hard sciences to the study of law, including patent law and innovation policy, offers an important opportunity to not only quantify the effect of a given piece of law or policy, but also to help determine the vires of such laws after they have been put in motion and to guide law reform efforts in light of objective arm’s length evidence.

It is hoped this series of articles has shed some light on the utility of traditional scientific methods for quantitative and qualitative assessment of patent value, and whether laws made decades ago to enhance innovation in the pharmaceutical sector and to facilitate timely generic entry are producing intended effects, unintended effects, or some combination of both. A second consideration is whether empirical legal research can be a valuable tool to assess the convergence of public health law and industrial law such as that which has evolved in most developed nations over the last three decades.

In any event, it will be interesting to see whether, as in other fields such as medicine and engineering that are accustomed to taking an “evidence-based” approach to problem identification and problem solving, whether we in the legal field may also include empirical evidence in our expanding toolkit of legal assessment and interpretation methods.



January 12, 5:28 PM   /   Jurisdynamics   /   Soft law and the global financial system

Jim Chen, Book Review, Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century, 26 Emory Int'l L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1944294):

Global financeIn Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century (2011), Christopher J. Brummer provides a detailed and informative analysis of the international regulatory response to the global financial crisis of 2008. This accomplishment alone warrants a close look at this book. But Professor Brummer goes further in this pivotal work on the law of international finance. He provides a persuasive theoretical account of international financial law. Soft Law and the Global Financial System not only describes the mechanisms of lawmaking and standard-setting for global financial markets, but also delivers a workable framework for prescribing and perhaps even perfecting the regulation of the world’s most vital and volatile economic institutions.



January 12, 4:01 PM   /   Agricultural Law   /   "Safe and Suitable" Meat Processing Ingredients

Those interested in what's in their food and how their food has been produced might want to check out the USDA FSIS Notice issued last week.  It includes a chart that lists the "Safe and Suitable Ingredients" that may be "used in the production of meat, poultry, and egg products."

This Notice provides an interesting window to the world of modern meat production. Some will react positively, noting the advantages that chemical compositions have provided us in establishing a safe system of meat production. Many chemicals are intended to serve as antimicrobials. Others will be dismayed at the laundry list of chemical washes, baths, injections, and sprays used on a typical serving of meat.

Either way, note the last column in the chart, "labeling requirements."  The labeling requirement for the use of many of these chemicals is "[n]one under the conditions of use." 

For example, as is set forth in the chart, under our current system of labeling law, anhydrous ammonia can be used in ground beef, followed with a carbon dioxide treatment "in accordance with current industry standards of good manufacturing practice" without any labeling requirement.  This is because anhydrous ammonia is considered a "processing aid."

FDA regulations define a "processing aids" as


See 21 CFR 101.100(a)(3)(ii).

Note that a "blend of salt, lemon extract, and grapefruit extract" also serves as an antimicrobial in hamburger, but FSIS requires that the "[p]roduct must be descriptively labeled" when this it is used.

As a side note, University of Arkansas researchers are doing some very interesting work on feeding cows orange peels as an "antimicrobial boost."  See, Cleaning Cows From the Inside Out.


But, back to the Notice.  Another category of chemicals that are also immune from labeling requirements are "secondary direct food additives."  These are defined as "substances whose functionality is required during the manufacture or processing of a food and are ordinarily removed from the final food. Although residuals might carry over to the final food, residuals must not exhibit any technical effects.  Secondary direct food additives are consistent with FDA’s definition of a processing aid so labeling is not required."  See 21 C.F.R. pt. 173.

Carbon monoxide gas is used in many meat packaging systems to preserve the fresh color of the product as well as its stated purpose "to maintain wholesomeness, provide flexibility in distribution, and reduce shrinkage of the meat."  It's use will not show up on the label because it is considered a "secondary direct food additive."

I find all this strangely fascinating.  When we talk about our "food system," it is a lot more complex than most people realize.



January 11, 1:07 AM   /   MoneyLaw   /   The better angels of our profession

Adapted from the December 2011 issue of Louisville Bar Briefs and from The Cardinal Lawyer

AngelWith his series of articles on legal education, David Segal of the New York Times has left a deep impression. From the beginning of calendar year 2011, Segal has repeatedly criticized some aspects of contemporary legal education. In an age when lawyer salaries have not kept pace with ballooning law school costs and student debts, he has questioned the economic rationality of attending law school. He has accused some law schools of offering financial aid packages that are tied to maintenance of seemingly attainable grade point averages, which then evaporate in the face of tough grading curves and expose scholarship recipients to second- and third-year bills for full tuition. He has challenged universities to prove that they are not running law schools as cash cows for cross-subsidizing lower-revenue units on campus.

But nothing else in David Segal's portfolio has caught the legal academy's attention like his November 20, 2011, article called "After Law School, Associates Learn to Be Lawyers." This excerpt provides the flavor of the article as a whole:

Drinker Biddle & Reath[T]he three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”


In other words, "Everything I needed to know about law, I didn't learn in law school."

Read the rest of this post . . . .To cap things off, the Times published a staff editorial immediately after Segal's article on the contrast between law firms' expectations and law schools' priorities. "Legal Education Reform" called upon American law schools to adopt sweeping reforms, including wholesale reconsideration of its emphasis on legal reasoning, especially as demonstrated in appellate cases.

Law professors across the country have reacted rather strongly to the New York Times' series, particularly Segal's article on law faculty hiring and the staff editorial demanding law school reform. Those reactions have fallen into three broad categories. Elisabeth Kübler-Ross would be proud: Faced with this challenge to their dignity and their raison d'être, law professors collectively have covered nearly the entire emotional range of the grieving process. Some have reacted with denial and anger. Others actively try to bargain with other branches of the legal profession. Still others, albeit with some measure of depression, have done their best to accept appropriate criticism and to begin framing some form of meaningful, constructive response.

Training lawyersLet me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a "hatchet job" or (better yet) a "bile pile." It takes a deep measure of cynicism, perhaps even petty selfishness, to characterize the Times as being motivated by their writers and editors failing to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.

Count me in the third camp. The criticisms are real. They sting. All of us, from law schools to law students to lawyers and law firms, have to do something. Things could, things should be better.



There is, to be sure, much to criticize in the work of Segal and his Times colleagues. "After Law School, Associates Learn to Be Lawyers" makes serious factual errors. Segal mischaracterizes the content of law school courses on criminal law and criminal procedure. He represents as legal scholarship an article appearing in a philosophy journal. The Times as a whole seems to belittle the value of analytical legal reasoning and, correspondingly, to elevate certain formalities of legal practice (such as filing a certificate of merger). But to take issue with these minutiae, let alone to tee off in anger or resentment, is to pay no heed to the realities of modern legal practice. The business of delivering traditional legal services has lost much of its value. Along with the conventional lawyering model, the value of a generalist legal education has also plummeted. At once opportunistic and enterprising, all sorts of competitors — foreign lawyers, nonlegal professionals, actual lawyers who understand the urgencies of a mobile, technologically volatile age — are upsetting longstanding expectations about beginning salaries and the up-or-out partnership track. Cost-conscious clients distrust the billable hour. They are even more hostile to the idea of subsidizing the training of rookie lawyers who haven't learned all they needed during 90 credits of formal law school coursework.

Steven PinkerAs serendipity would have it, the entire episode coincided with my discovery of psychologist Steven Pinker's latest book, The Better Angels of Our Nature: Why Violence Has Declined. There is a single gem of wisdom in Pinker's book that seems particularly pertinent to his controversy. Pinker reports, on the basis of deep knowledge about human pyschology, that people systematically overestimate their own grievances and underestimate the pain borne by others. This bias transcends the notion that the grass is always greener on the other side of the fence. It's the regrettable tendency that we all have: believing that our grass alone is brown, and it's the fault of all our neighbors.

Demonizing the opposition is the root of all violence. And violence takes many forms. The ancient and modern societies of Pinker's book wage war. If only they took prisoners, rather than enslaving their enemies or slaying them outright. Lawyers, including those who teach law more often than they practice it, too often excel in inflicting emotional wounds for no apparent purpose except to assuage their own sense of hurt. When it comes to genuine reform of legal education and the profession it serves, casting Segal and the New York Times onto the "bile pile" of academic amusement and aggrandizement accomplishes absolutely nothing.

The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal. The relative cheapness of traditional lecturing explains why it's more prevalent than hand-to-hand clinical teaching, but cost alone sheds at best incomplete light on the value of practical as well as intellectual training in law school. And no one, inside or outside the academy, has ever found the perfect way to convey subtle skills that arise over the course of a lifetime of professional activities and interpersonal relationships.

We have to start somewhere. Perhaps we can begin by admitting that everyone is in pain. Law students are in debt. Law schools face budget cuts. Law firms are enduring layoffs and lower per-partner payouts. For once, we might acknowledge that all of us have grievances, that our own complaints may be no more pressing than those of our companions. Fingers we have been too quick to point might yet touch what Abraham Lincoln called the mystic chords of memory — strings that can be struck only by the better angels of our profession.



January 10, 1:25 AM   /   Agricultural Law   /   AALS Agricultural Law Presentation: Obama Administration Initiatives

Michelle ObamaThe American Association of Law Schools (AALS) Agricultural Law Section met at the AALS Annual Conference in Washington, D.C. on Saturday, January 7, 2012 and a panel presentation was delivered. The presentation focused on agricultural and food law initiatives undertaken by the Obama administration. The section also unanimously voted to change the name of the section to “Agricultural and Food Law,” recognizing the essential link between our agricultural laws and our food system.

The section was pleased to host a special guest on its panel, Janie Simms Hipp, Senior Advisor to Secretary Vilsack on Tribal Relations and Director of Office of Tribal Relations at USDA. Ms Hipp spoke on civil rights initiatives at the USDA including the settlement of the In re Black Farmers case involving late claims in the prior Pigford case and the settlement of the Keepseagle class action discrimination case brought on behalf of Native American farmers.
Professor Alison Peck from the University of West Virginia College of Law spoke on environmental issues under the USDA, focusing on the recent approval of a number of genetically modified crops and the difficulty Secretary Vilsack has had in achieving “co-existence” between GM and non-GM production. Professor Peck will chair our section for the coming year and will plan next year's panel presentation.

My role on the panel was to consider issues related to food, and I focused specifically on the initiatives undertaken by the Obama administration that reflect a contrast with the prior administration. I highlighted three categories of initiatives: 1) The active promotion of local and regional food systems; 2) The establishment of prevention as the primary focus of the government’s efforts to promote food safety; and, 3) The development of coordinated nutrition policies to address health issues, and in particular childhood obesity.

Before considering these initiatives, I set the stage by reviewing the forces at work in influencing our food system, highlighting the advocates for change and those with vested interests that are often threatened by reform.

The podcast for our presentation will be available in the future, and we hope to post it on this blog. In the meantime, the slideshow from my presentation is posted here.



January 9, 0:32 AM   /   Jurisdynamics   /   A summer teaching clearinghouse

Editor's note:: Reposted from Health Law Blog.

ClearinghouseAlthough many law schools, both in the United States and to a lesser extent abroad, hire faculty members other than their own to teach summer school, this has always been a haphazard process. Establishing a general clearinghouse for law school summer teaching positions is likely to provide a great benefit for both law faculty and law schools across the country and the world. The Health Law Prof Blog has agreed to host the clearinghouse by posting all of the notices of teaching opportunities for the Summer of 2012.

Please share the following information in your announcement and send it for posting on the Health Law Profs Blog to either Jennifer Bard at jennifer.bard@ttu.edu or Katharine Van Tassel at kvantassel@stu.edu:


(a) the name of your school; (b) the name of the chair of your summer hiring committee and that person's contact information; (c) any particular subject areas in which your school is looking to hire; (d) the dates that the summer class(es) will be taught; and, (e) any other information you think might be relevant.



January 7, 7:24 AM   /   Ratio Juris   /   “Is Art a Superstition, or a Way of Life?” (Part 3)



Part 1 is here, and Part 2 here.
“Art can…be defined as the embodiment in material of a preconceived form. The artist’s operation is dual, in the first place intellectual or ‘free’ and in the second place manual and ‘servile.’ ‘To be properly expressed,’ as Eckhart says, ‘a thing must proceed from within, moved by its form.’ It is just as necessary that the idea of the work to be done should first of all be imagined in an imitable form as that the workman should command the technique by which this mental image can be imitated in the available material. ‘It is,’ as Augustine says, ‘by their ideas that we judge of what things ought to be like.’ A private property in ideas is inconceivable, since ideas have no existence apart from the intellect that entertains them and of which they are the forms; there cannot be an authorship of ideas, but only an entertainment, whether by one or many intellects is immaterial. It is not…in the themes of his work, that an artist’s intellectual operation is ‘free;’ the nature of the ideas to be expressed in art is predetermined by a traditional doctrine…. As Aristotle expresses it, the general end of art is the good of man. This is a matter of religious art only in this sense, that in a traditional society there is little or nothing than can properly be called secular;…no distinction can be drawn between the ideas expressed in the humblest peasant art of a given period and those expressed in the actually hieratic arts of the same period. We cannot too often repeat that the art of a traditional society…has fixed ends and ascertained means of production; art is a conscien[tiousness] about form, precisely as prudence is a conscie[tiousness] about conduct—a conscien[tiousness] in both senses of the world, i.e., both as rule and as awareness. [….]
Where an idea to be expressed remains the same throughout long sequences of stylistic variation, it is evident that this idea remains the motif or motivating power behind the work; the artist has worked throughout for the sake of the idea to be expressed, although expressing this idea always in his own way. The primary necessity is that he should really have entertained the idea and always visualized it in an imitable form; and this, implying an intellectual activity that must ever be renewed, is what we mean by originality as distinguished from novelty, and by power as distinguished from violence. It will readily be seen, then, that in concentrating our attention on the stylistic peculiarities of works of art, we are confining it to a consideration of accidents, and really only amusing ourselves with a psychological analysis of personalities; not by any means penetrating to what is constant and essential in the art itself. [….]
[T]he artist turns from intellectual to manual operation or vice versa at will, and when the work has been done, he judges its ‘truth’ by measuring the actual form of the artifact against the mental image of it and that was his before the work began and remains in his consciousness regardless of what may happen to the work itself. We can now perhaps begin to realize just what we have done in separating artist from craftsman and ‘fine’ from ‘applied’ art. We have assumed that there is one kind of man that can imagine, and another that cannot; or to speak more honestly, another kind whom we cannot afford, without doing hurt to business, to allow to imagine, and to whom we therefore permit a servile and imitative operation only. [….]
[W]e begin to see now why primitive and traditional and what we have described as normal art is ‘abstract;’ it is an imitation, not of a visible and transient appearance or ‘effect of light,’ but of an intelligible form which need no more resemble any natural object than a mathematical equation need look likes its locus in order to be ‘true.’ It is one thing to draw in linear rhythms and abstract light because one must; another thing for anyone who is not by nature and in the philosophical sense a realist, deliberately to cultivate an abstracted style. [….]
There is also a traditional doctrine of beauty. This theory of beauty is not developed with respect to artifacts alone, but universally. It is independent of taste, for it is recognized that at Augustine says, there are those who take pleasure in deformities. The word deformity is significant here, because it is precisely a formal beauty that is in question; and we must not forget that ‘formal’ includes the connotation ‘formative.’ The recognition of beauty depends on judgment, not sensation; the beauty of the aesthetic surfaces depending on their information, and not upon themselves. Everything, whether natural or artificial, is beautiful to the extent that it really is what it purports to be, and independently of all comparisons; or ugly to the extent that its own form is not expressed and realized in its tangible actuality. The work of art is beautiful, accordingly, in terms of perfection, or truth and aptitude….; whatever is inept or vague cannot be considered beautiful, however it may be valued by those who ‘know what they like.’ So far from that, the veritable connoisseur ‘likes what he knows;’ having fixed upon that course of art which is right, use has made it pleasant. Whatever is well and truly made, will be beautiful in kind because of its perfection.” [....] Ananda K. Coomaraswamy, Christian and Oriental Philosophy of Art (New York: Dover, 1956 [originally published in 1943 under the title, Why Exhibit Works of Art?])



January 6, 10:31 PM   /   Jurisdynamics   /   Progressive Taxation: An Aesthetic and Moral Defense

Progressive taxation

Jim Chen, Progressive Taxation: an Aesthetic and Moral Defense, 50 U. Louisville L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1980731:

The power to tax is at once the power to create and the power to destroy. If the United States government hopes to discharge its primary duty as creator and protector of its citizens’ wealth, it must be willing to destroy wealth, from time to time, by redistributing it. More than any other tool, the means by which government finances and depletes its treasury affects the societal distribution of wealth. Differential taxation and targeted spending are the most significant and most effective means by which government can “gradually and continually . . . correct the distribution of wealth to prevent concentrations of power detrimental to the fair value of political liberty and fair equality of opportunity.” Redistribution and the attendant destruction of entrenched wealth serve as society’s ultimate weapons of “creative destruction.” Of the many forces that have propelled the United States to the economic, political, social, and military pinnacle of the modern world, its willingness to countenance radical technological and organizational upheaval probably ranks first. American prosperity depends on the federal government’s commitment to an economic environment in which citizens are able not only to amass large amounts of new wealth, but also to lose it in rapid and remorseless fashion.



January 5, 3:27 PM   /   MoneyLaw   /   The ratio of educational debt to income as a measure of law graduates’ viability

I offer the following publicly available summary of my fuller paper, A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability, which can be downloaded at http://bit.ly/DegreePracticalWisdom and has been discussed in this forum. I will be discussing this paper during my contribution to the deans' forum in the annual program of the Section on Socio-Economics at the 2012 meeting of the Association of American Law Schools in Washington, D.C.


This table defines marginal, adequate, and good levels of educational debt, relative to monthly or annual income, based on loans amortized over 25 years at a fixed rate of 6 percent:

Financial viabilityEBER (educational back-end ratio) = monthly debt service / monthly gross incomeEDAI = total debt / annual income
Good0.040.5
Adequate0.081.0
Marginal0.121.5


The simplest measure of whether a student can afford law school is to project the ratio of future annual income to total law school debt. The most conservative assumption is that law school debt will equal three times tuition. I presume that students enter school with no other debt. I further presume that students can fund the cost of living without further borrowing. On those assumptions, the ratio of annual income to educational debt is simply the reciprocal of ratio of educational debt to annual income, with loan principal defined as annual tuition times three:
Ratio of annual salary to law school debt = annual salary / (annual tuition * 3)
Applying my definitions of good, adequate, and marginal financial viability to this ratio generates three very simple rules of thumb. To offer good financial viability, defined as a ratio of education debt to annual income no greater than 0.5, post-law school salary must exceed annual tuition by 6 to 1. Adequate financial viability is realized when annual salary reaches three years of tuition. A marginal level of financial viability requires a salary that is equal to two years’ tuition:

TuitionSalary needed for good viabilitySalary needed for adequate viabilitySalary needed for marginal viability
$16,000$96,000$48,000$32,000
$32,000$192,000$96,000$64,000
$48,000$288,000$144,000$96,000



January 3, 10:43 PM   /   BioLaw: Law and the Life Sciences   /   Innovation Incentives Part 2: Patent Valuation

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 2

Editor's note: This is the second installment of a three-part series.

In new work by our group, we have outlined a tandem of new methodological tools to identify and quantify new and follow-on drugs and patent valuation. The first is a harmonized method to quantify drug approvals, patents and associated chemical components that summarizes and extends our previous work on topic. The second provides a new “innovation index” that incrementally grades the value, not only for patents in the life sciences and other technology-intensive sectors, but also for associated regulatory approvals, chemical components, patent characteristics, etc. The innovation index values are based on evidentiary hurdles and prioritizations for several classes of “new” and “follow-on” drugs disclosed by drug regulators. As indicated by the titles of the articles, one focuses on the quantitative side while the other focuses on the qualitative side of the analysis.

The Boston Article presents a harmonized method to collect, compare, and quantify regulatory approval data from multiple cohorts of new and follow-on drugs. We looked in some detail at about 2,000 regulatory approvals, 5,000 patents, and 130 chemical components. The analysis encompasses all drug classes enumerated, described and prioritized by domestic drug regulators. The drug classes were gleaned from the usual literature reviews, supplemented by several hours of consultation with Health Canada regulators and review of Health Canada Guidance Documents on topic. A second purpose of this work was to go beyond simplified descriptors of new and follow-on drugs found in the literature, to categorize classes of new, line extension and generic approvals according to the nomenclature used by regulators themselves. This latter point is relevant is relevant, as we found different scholars use different approaches and nomenclatures, sometimes very different, and that these approaches were not always the same as those used by regulators themselves.

Read the rest of this post . . . .The innovation index work described in the companion Santa Clara Article was driven by the fact that almost all published patent assessment methods measure innovation using primarily quantitative methods, otherwise referred to as ‘counting methods.’ For reasons discussed in work on topic by Kingston at Trinity, Lemley at Stanford and Polk and Parchomovsky at Penn, and the sources cited therein, while quantitative models are widely considered to be problematic, a model that assesses patent value using qualitative methods that track, or are at least designed to track social benefits, has not yet emerged. A second reason for developing the two methods is that is that even when many scholars and commentators do look at the “innovative” aspect of the data, they simply accept data provided by regulators in their respective annual reports in a per se manner.

While developing a novel scientific method for either obtaining or analyzing legal data is fraught with its own problems, this step nevertheless forms a necessary component of the “trial and error” heuristic typical in the hard sciences. As more individuals with prior experience in medical science enter law and legal scholarship, we will undoubtedly see more and more scientific studies of law, including importing of fundamental mathematical, statistical, curve fitting, modeling, and graphing methods. In the Santa Clara paper, a qualitative innovation index is reported that we hope may fill some of the gaps in patent valuation. One of the figures from this work, relating to regulatory approvals, is shown below.

Fig. 1. Innovation Index Data for Total Approval Cohort. Bar graphs showing the number of total approvals expressed as a function of the level of innovation (LOI) before (a) and after (b) of generic approval data. c Brand approvals expressed as a function of LOI. Solid line is a fit of the data to a single exponential function. d Cumulative normalized brand approvals expressed as a function of LOI. Solid line is fit using a sigmoidal function.
The figure presents data for many classes of new and follow-on drugs and categorizes these classes using a linear scheme. Raw data values are given in the Y axis of Fig. 1a and 1b, the difference being generic data were subtracted in Fig. 1b to isolate data only from ‘innovator’ firms. The X axis in both panels represents the innovation index data. The innovation index data are referred to as transformed data, because the raw data pertaining to drug approvals, drug patents, and chemical components are transformed into qualitative values on a linear scale (0-15) using the methods outlined in the Santa Clara paper.

The strengths and weaknesses of the hybrid “subjective-objective” nature of data transformation, and the similarities to subjective-objective hybrid models that are already widely accepted for use in the fields of drug approval, patent grant, and the adjudication of patent claims by the courts are discussed more fully there.

Data can, of course, be fit to many types of numerical functions, linear or non-linear; increasing or decreasing. Fig. 1c above shows that the data in the bar graph of Fig. 1b fit to a declining exponential function. As can be seen by the close fit of the data to the function, the choice of an exponential relationship was well founded. The data are interesting as they demonstrate an exponential decline in the numbers of drugs in classes with relatively high innovation index values. In other words, the vast majority of drugs approved in Canada have a very low index value, and indeed are primarily follow-on Me Too drugs.

Fig. 1d represents the normalized cumulative data fit to a sigmoid (S-shaped log) function, which is a numerical approximation of “how fast” the innovation index data rise to their maximal peak. A fast rise, as we see here, suggests that most of the drugs approved over nearly a decade are in the low index bins and that the data in the low index bins accumulate much more rapidly than do the data in the higher index bins. Similar, though not identical, results were obtained with several indicator Cohorts studied, including a wide Cohort of 2,087 drugs, a narrower Cohort of 95 of the most profitable drugs, and a similar Cohort of associated patents and chemical components.

The innovation index provides a means of weighing legitimate patent protection against perceived societal benefit. As such, it affords a qualitative measure of the innovative nature of drug patents that, when compared to counting methods, may more adequately reveal the outcome of development incentives for firms and regulating bodies insofar as these parties have conflicting interests.

The results from our analysis indicate that it is not the most innovative or even strongly innovative drugs that are attracting the greatest firm patenting effort. Rather, when gauged against development priorities publicly disclosed by regulators and governments, including specifically in the United States and Canada where linkage first came into force, it is the least innovative drugs of all classes investigated that display the strongest regulatory approval and patenting efforts. This issue is touched on in more detail in Part 3 of the series.

In this manner, our data are contrary to the established dogma that the strength of patent protection is proportional to the "strength" of innovation of a given product. As discussed more fully in Part 3, the data obtained also support the conclusion that cluster-based, or portfolio-based, drug development has become the dominant innovation strategy for both brand and generic firms. Indeed, data from our Boston study demonstrates conclusively that generic firms are accruing more patents than their brand counter-parts, especially in the new drug approval category.

Finally, the data suggest that the perception on the part of governments and the public to the effect that societal benefit comes as a kind of “natural consequence” of patenting may need to be reconsidered.



January 2, 7:29 PM   /   Commercial Law   /   Thomas Jefferson to Host International Conference on Contracts

Happy to report that Thomas Jefferson School of Law in sunny San Diego will be hosting the International Conference on Contracts this year on March 2-3. This is always a good conference4 with a variety of topics and presenters on both scholarly and teaching projects. For more information, click here.


- JSM



January 1, 7:27 AM   /   Ratio Juris   /   Silence is Golden

The following is by Pico Iyer in the New York Times:

[….] “In barely one generation we’ve moved from exulting in the time-saving devices that have so expanded our lives to trying to get away from them — often in order to make more time. The more ways we have to connect, the more many of us seem desperate to unplug. Like teenagers, we appear to have gone from knowing nothing about the world to knowing too much all but overnight.

Internet rescue camps in South Korea and China try to save kids addicted to the screen.

Writer friends of mine pay good money to get the Freedom software that enables them to disable (for up to eight hours) the very Internet connections that seemed so emancipating not long ago. Even Intel (of all companies) experimented in 2007 with conferring four uninterrupted hours of quiet time every Tuesday morning on 300 engineers and managers. (The average office worker today, researchers have found, enjoys no more than three minutes at a time at his or her desk without interruption.) During this period the workers were not allowed to use the phone or send e-mail, but simply had the chance to clear their heads and to hear themselves think. A majority of Intel’s trial group recommended that the policy be extended to others.

The average American spends at least eight and a half hours a day in front of a screen, Nicholas Carr notes in his eye-opening book ‘The Shallows,’ in part because the number of hours American adults spent online doubled between 2005 and 2009 (and the number of hours spent in front of a TV screen, often simultaneously, is also steadily increasing).

The average American teenager sends or receives 75 text messages a day, though one girl in Sacramento managed to handle an average of 10,000 every 24 hours for a month. Since luxury, as any economist will tell you, is a function of scarcity, the children of tomorrow, I heard myself tell the marketers in Singapore, will crave nothing more than freedom, if only for a short while, from all the blinking machines, streaming videos and scrolling headlines that leave them feeling empty and too full all at once.

The urgency of slowing down — to find the time and space to think — is nothing new, of course, and wiser souls have always reminded us that the more attention we pay to the moment, the less time and energy we have to place it in some larger context. ‘Distraction is the only thing that consoles us for our miseries,’ the French philosopher Blaise Pascal wrote in the 17th century, ‘and yet it is itself the greatest of our miseries.’ He also famously remarked that all of man’s problems come from his inability to sit quietly in a room alone.

When telegraphs and trains brought in the idea that convenience was more important than content — and speedier means could make up for unimproved ends — Henry David Thoreau reminded us that ‘the man whose horse trots a mile in a minute does not carry the most important messages.’ Even half a century ago, Marshall McLuhan, who came closer than most to seeing what was coming, warned, ‘When things come at you very fast, naturally you lose touch with yourself.’ Thomas Merton struck a chord with millions, by not just noting that ‘Man was made for the highest activity, which is, in fact, his rest,’ but by also acting on it, and stepping out of the rat race and into a Cistercian cloister.

Yet few of those voices can be heard these days, precisely because ‘breaking news’ is coming through (perpetually) on CNN and Debbie is just posting images of her summer vacation and the phone is ringing. We barely have enough time to see how little time we have (most Web pages, researchers find, are visited for 10 seconds or less). And the more that floods in on us (the Kardashians, Obamacare, ‘Dancing with the Stars’), the less of ourselves we have to give to every snippet. All we notice is that the distinctions that used to guide and steady us — between Sunday and Monday, public and private, here and there — are gone.

We have more and more ways to communicate, as Thoreau noted, but less and less to say. Partly because we’re so busy communicating. And — as he might also have said — we’re rushing to meet so many deadlines that we hardly register that what we need most are lifelines.

So what to do? The central paradox of the machines that have made our lives so much brighter, quicker, longer and healthier is that they cannot teach us how to make the best use of them; the information revolution came without an instruction manual. All the data in the world cannot teach us how to sift through data; images don’t show us how to process images. The only way to do justice to our onscreen lives is by summoning exactly the emotional and moral clarity that can’t be found on any screen.

Maybe that’s why more and more people I know, even if they have no religious commitment, seem to be turning to yoga, or meditation, or tai chi; these aren’t New Age fads so much as ways to connect with what could be called the wisdom of old age. Two journalist friends of mine observe an ‘Internet sabbath’ every week, turning off their online connections from Friday night to Monday morning, so as to try to revive those ancient customs known as family meals and conversation. Finding myself at breakfast with a group of lawyers in Oxford four months ago, I noticed that all their talk was of sailing — or riding or bridge: anything that would allow them to get out of radio contact for a few hours.

Other friends try to go on long walks every Sunday, or to ‘forget’ their cellphones at home. A series of tests in recent years has shown, Mr. Carr points out, that after spending time in quiet rural settings, subjects ‘exhibit greater attentiveness, stronger memory and generally improved cognition. Their brains become both calmer and sharper.’ More than that, empathy, as well as deep thought, depends (as neuroscientists like Antonio Damasio have found) on neural processes that are ‘inherently slow.’ The very ones our high-speed lives have little time for.” [….] The rest of the essay is here.

* * * * * * *

Speaking of Pico, there’s notice of his new book on Graham Greene in the New York Times. As I note in the former link, I would unhesitatingly recommend anything written by him, but I especially look forward with relish to this book, having had several conversations with him about his (and now ‘our’) fondness for Greene. Buy from your local, independent bookseller if possible (so as to help them avoid the fate of my beloved Bodhi Tree Bookstore) but if not, see here.



December 30, 6:44 AM   /   Ratio Juris   /   “Is Art a Superstition, or a Way of Life?” (Part 2)


“Let us now take for granted the historically normal and religiously orthodox view that, just as ethics is the ‘right way of doing things,’ so art is the ‘making well of whatever needs making,’ or simply ‘the right way of making things:’ and still addressing ourselves to those [who]…ask whether art is not after all a necessity.

A necessity is something that we cannot afford to do without, whatever its price. We cannot go into questions of price here, except to say that art need not be, and should not be expensive, except to the extent that costly materials are employed. It is at this point that the crucial question arises of manufacture for profit versus manufacture for use. It is because the idea of manufacture for profit is bound up with the currently accepted industrial sociology that things in general are not well made and therefore also not beautiful. It is the manufacturer’s interest to produce what we like, or can be induced to like, regardless of whether or not it will agree with us…. Manufacturers and other artists alike resort to advertisement; art is abundantly advertised in schools and colleges, by ‘Museums of Modern Art,’ and by art dealers; and artist and manufacturer both alike price their wares according to what the traffic will bear. [….] It is only when the maker of things is a maker of things by vocation, and not merely holding down a job, that the price of things approximate to their real value; and under these circumstances, when we pay for a work of art designed to serve a necessary purpose, we get our money’s worth; and the purpose being a necessary one, we must be able to afford to pay for the art, or else we are living below a normal human standard; as most men are now living, even the rich, if we consider quality rather than quantity. Needless to add that the workman is also victimised by a manufacture for profit; so that it has become a mockery to say to him that hours of work should be more enjoyable than hours of leisure….

Industry without art is brutality. Art is specifically human. None of those primitive peoples, past or present, whose culture we affect to despise and propose to amend, has dispensed with art; from the stone age onwards, everything made by man, under whatever conditions of hardship or poverty, has been made by art to serve a double purpose, at once utilitarian and ideological. It is we who, collectively speaking at least, command amply sufficient resources, who have first proposed to make a division of art, one sort to be barely utilitarian, the other luxurious, and altogether omitting what was once the highest function of art, to express and to communicate ideas. It is long since sculpture was thought of as the poor man’s ‘book.’ [….]

…[T]he whole business of ‘collecting’ and the ‘love of art’ are no more than a sentimental aberration and means of escape from the serious business of life. 
…[M]erely to cultivate the higher things of life, if art be such, in hours of leisure to be obtained by a further substitution of mechanical for manual means of production, is as much a vanity as the cultivation of religion for religion’s sake on Sundays only could ever be; and…the pretensions of the modern artist are fundamentally wishful and egotistic. [….]

As to fame, it need only be pointed out that the greater part of the greatest art of the world has been produced anonymously, and that if any workman has only fame in view, ‘any proper man ought to be ashamed for good people to know this of him.’ And as to art, to say that the artist works for art is an abuse of language. Art is that by which a man works, supposing that he is in possession of his art and has the habit of his art; just as prudence or conscience is that by which he acts well. Art is no more the end of his work than prudence the end of his conduct.

It is only because under the conditions established in a system of production for profit rather than for use we have forgotten the meaning of the word ‘vocation,’ and think only in terms of ‘jobs,’ that such confusions as these are possible. The man who has a ‘job’ is working for ulterior motives, and may be quite indifferent to the quality of the product, for which he is not responsible; all that he wants in this case is to secure an adequate share of the expected profits. But one whose vocation is specific, that is to say who is naturally and constitutionally adapted to and trained in some one or another kind of making, even though he earns his living by this making, is really doing what he likes most; and if he is forced by circumstance to do some other kind of work, even though more highly paid, is actually unhappy. The vocation, whether it be that of the farmer or the architect, is a function; the exercise of this function as regards the man himself is the most indispensable means of spiritual development, and as regards to his relation to society the measure of his worth. It is precisely in this way that as Plato says, ‘more will be done, and with more ease, when everyone does but one thing, according to his genius; and this is justice to each man himself.’ It is the tragedy of a society industrially organized for profit that this justice to each man in himself is denied him; and that any such society literally and inevitably plays the Devil with the rest of the world.

The basic error in what we have called the illusion of culture is the assumption that art is something to be done by a special kind of man, and particularly that kind of man we call a genius. In direct opposition to this is the normal and humane view that art is simply the right way of making things, whether symphonies or airplanes. The normal view assumes, in other words, not that the artist is a special kind of man, but that every man who is not a mere idler and parasite is necessarily some special kind of artist, skilled and well contented in making or arranging of some one thing or another according to his constitution and training. [….]

What the class thinker who is not merely an underdog, but also a man, has a right to demand is…the opportunity to take as great a pleasure in doing whatever he does for hire, as he takes in his own garden or family life; what he should demand, in other words, is the opportunity to be an artist. No civilisation that can be accepted that denies him this.”—Ananda K. Coomaraswamy, Christian and Oriental Philosophy of Art (New York: Dover, 1956 [originally published in 1943 under the title, Why Exhibit Works of Art?])



December 29, 7:08 AM   /   Ratio Juris   /   “Is Art a Superstition, or a Way of Life?” (Part 1)


“It seems to be a matter of general agreement at the present day that ‘Art’ is a part of the higher things of life, to be enjoyed in hours of leisure earned by other hours of inartistic ‘Work.’ We find accordingly as one of the most obvious characteristics of our culture a class division of artists from workmen, of those for example who paint on canvas from those who paint the walls of houses, and of those who handle the pen from those who handle the hammer. We are certainly not denying that there is a distinction of the contemplative from the active life, nor of free from servile operation: but mean to say that in our civilization we have in the first place made an absolute divorce of the contemplative from the active life, and in the second place substituted for the contemplative life an aesthetic life…. [….] In any case we have come to think of art and work as incompatible, or at least independent, categories and have for the first time in history created an industry without art. [….]

Art having been abstracted from the general activity of making things for human use, material or spiritual, has come to mean for us the projection in a visible form of the feelings or reactions of the peculiarly-endowed personality of the artist, and especially of those most peculiarly-endowed personalities which we think of as ‘inspired’ or describe in terms of genius. Because the artistic genius is mysterious we, who accept the humbler status of the workman, have been only too willing to call the artist a ‘prophet,’ and in return for his ‘vision’ to allow him many privileges that a common man might hesitate to exercise. [….] Whereas it was once the highest purpose of life to achieve a freedom from oneself, it is now our will to secure the greatest possible measure of freedom for oneself, no matter what. [….]

Our theoretical knowledge of the material and technical bases of art, and of its actual forms, is encyclopedic; but we are either indifferent to its raison d’être and final cause, or find this reason and ultimate justification for the very existence of the work in the pleasure to be derived from its beauty by the patron. We say the patron; but under present conditions, it is oftener for his own than for the patron’s pleasure that the artist works; the perfect patron being nowadays, not the man who knows what he wants, but the man who is willing to commission the artist to do whatever he likes, and thus as we express it, ‘respects the freedom of the artist.’ The consumer, the man, is at the mercy of the manufacturer for pleasure (the ‘artist’) and manufacturer for profit (the ‘exploiter’) and these two are more nearly the same than we expect. [….]

It is one of the greatest counts against our civilization that the pleasures afforded by art, whether in the making or of subsequent appreciation, are not enjoyed or even supposed to be enjoyed by the workman at work. It is taken for granted that while at work we are doing what we like least, and while at play what we should wish to be doing all the time. And…it is not so shocking that the workman should be underpaid, as that he should not be able to delight as much in what he does for hire as in what he does by free choice. As Meister Eckhart says, ‘the craftsman like talking of his handicraft:’ but, the factory worker likes talking of the ball game! It is an inevitable consequence of production under such conditions that quality is sacrificed to quantity: an industry without art provides a necessary apparatus of existence: houses, clothing, frying pans, and so forth, but an apparatus lacking the essential characteristics of things made by art, the characteristics, viz., of beauty and significance. Hence we say that the life we call civilized is more nearly an animal and mechanical life than a human life; and that in all these respects it contrasts unfavourably with the life of savages, of American Indians for example, to whom it had never occurred that manufacture, the activity of making things for use, could ever be made an artless activity.”—Ananda K. Coomaraswamy, Christian and Oriental Philosophy of Art (New York: Dover, 1956 [originally published in 1943 under the title, Why Exhibit Works of Art?])



December 22, 5:59 AM   /   Ratio Juris   /   Science & Religion: A Select Bibliography

This is a slightly different version of a compilation I put together at the request of a colleague, so I thought I’d share it with our readers, some of whom, presumably, have an interest in the subject.



December 20, 7:31 AM   /   Ratio Juris   /   Freud and the Philosophers

“Virtually all those who are not ignorant of Freud or totally skeptical of his findings believe that he altered, radically altered, our conception of the mind. He effected a change of what we think we are like, and it was a big change. Astonishingly enough, it is philosophers who have been of all people slowest to recognize this fact. They have been slowest to recognize that this fact has anything to do with them.”—Richard Wollheim, The Mind and Its Depths (1993): 91.

In addition to Wollheim himself (regrettably, no longer with us), among those I would count as exceptions to this generalization include Sebastian Gardner, the late David Sachs, Donald Levy, John Cottingham, Marcia Cavell,* the late Ilham Dilman, Jonathan Lear, Ernest Wallwork, and Jim Hopkins.

* I'm not sure where Professor Cavell is currently teaching, it may be at U.C. Berkeley.



December 20, 0:16 AM   /   Ratio Juris   /   The Port Huron Statement at 50


If any Ratio Juris readers of Leftist suasion like yours truly are in Southern California in February of 2012, I thought this conference here in Santa Barbara would be worth attending: The Port Huron Statement at 50 (!). I’ve put together some homework/background reading for those of you perhaps too young to be intimately acquainted or well-versed in this history. The Port Huron Statement, first published by the Students for a Democratic Society (SDS) (the student Department of the League for Industrial Democracy) in 1962, is reprinted as the appendix in the Miller volume below.



December 19, 0:09 AM   /   Ratio Juris   /   Václav Havel & The Existential Revolution


The playwright, essayist, and dissident, Václav Havel (1936-2011), died on Sunday. Havel was one of the foremost leaders of Czechoslovakia’s 1989 “Velvet Revolution,” the genesis of which was the invasion by the Soviet Union and four other Warsaw Pact states of the country in August 1968 so as to put a stop to its “popular experiment [in] reform socialism.” While the seeds of the nonviolent Velvet Revolution were planted during this particular revolt against Party-State Socialism, in the short term, the invasion was successful: “by 1970, Czechoslovakia had become one of the most rigidly orthodox states in the Soviet bloc.” One might reasonably conclude that nonviolent civil resistance clearly failed in this case, although it has been plausibly argued that the principle variables in determining the outcome were found in the orbit of “high politics,” the precise nature of the civil resistance possessing, therefore, little relevance to that outcome. Yet the commitment to nonviolent civil resistance did not disappear, even if the opposition’s strategies and tactics (exemplified by the Citizens’ Forum and The Public against Violence) differed this time ‘round. What is more, the geo-political circumstances had significantly changed for the better in the intervening period, and it may well have been this fact that was decisive in explaining the comparative success of the Velvet Revolution.

Havel did not simply oppose, with considerable courage, the post-totalitarian society’s structural and political constraints on “living within the truth,” nor was his conception of a nonviolent revolution solely social or political in essence or orientation. In his well-known essay, “The Power of the Powerless” (1978), Havel wrote of the need for broad “existential revolution” in the industrial and post-industrial nation-states of the Northern hemisphere. It is only upon the basis of such a revolution that can one hope to achieve a “generally ethical—and, of course ultimately a political—reconstitution of society.” Without here going into details, Havel’s conception of an existential revolution is uncannily similar in important respects to Rudolf Bahro’s largely cognitive conception of “general emancipation” first outlined in The Alternative in Eastern Europe (1978, published in German in 1977) and later articulated in a “deep ecology” and more explicitly spiritual framework (wherein the forces of reason are now ‘relativized’ in the ‘economy of consciousness’) after Bahro moved to West Germany and became a leading spokesperson for the “fundamentalist” faction of Die Grünen. Havel here outlines the necessity of an existential revolution, the basic premises of which should be attractive to those of us who identify with the “religious left:”

“What we call the consumer and industrial (or post-industrial) society, and Ortega y Gasset once understood as ‘the revolt of the masses,’ as well as the intellectual, moral, political and social misery in the world today: all of this is perhaps merely an aspect of the deep crisis in which humanity, dragged helplessly along by the automatism of global technological civilization, finds itself.

The post-totalitarian system is only one aspect—a particularly drastic aspect and thus all the more revealing of its real origins—of the general inability of modern humanity to be master of its own situation. The automatism of the post-totalitarian system is merely an extreme version of the global automatism of technological civilization [what Rudolf Bahro, after Lewis Mumford, refers to as the ‘Megamachine’]. The human failure that it mirrors is only one variant of the general failure of modern humanity.

This planetary challenge to the position of human beings in the world is, of course, also taking place in the Western world, the only difference being the social and political forms it takes. [….] There is no real evidence that Western democracy, that is, the democracy of the traditional parliamentary type, can offer solutions that are any more profound. It may even be said that the more room there is in the Western democracies (compared to our world), for the genuine aims of life, the better the crisis is hidden from people and the more deeply do they become immersed in it.

[….] People are manipulated in ways that are infinitely more subtle and refined than the brutal methods used in the post-totalitarian societies. But this static conception of rigid, conceptually sloppy and politically pragmatic mass political parties run by professional apparatuses and releasing the citizen from all forms of concrete and personal responsibility; and those complex forces of capital accumulation engaged in secret manipulations and expansion; the omnipresent dictatorship of consumption, production, advertising, commerce, consumer culture, and all that flood of information: all of it, so often analyzed and described, can only with great difficulty be imagined as the source of humanity’s rediscovery of itself. [….] In a democracy, human beings may enjoy many personal freedoms and securities that are unknown to us, but in the end they do them no good, for they too are ultimately victims of the same automatism, and are incapable of defending their concerns about their own identity or preventing their superficialization [sic] or transcending concerns about their own personal survival to become proud and responsible members of the polis, making a genuine contribution to the creation of its destiny. [….]

Above all, any existential revolution should provide hope of a moral reconstitution of society, which means a radical renewal of the relationship of human beings to what I have called the ‘human order,’ which no political order can replace. A new experience of being, a renewed rootedness in the universe, a newly grasped sense of ‘higher responsibility,’ a new-found inner relationship to other people and to the human community—these factors clearly indicate the direction in which we must go.

And the political consequences? Most probably they could be reflected in the constitution of structures that will derive from this ‘new spirit,’ from human factors rather than from a particular formalization of political relationships and guarantees. In other words, the issue is the rehabilitation of values like trust, openness, responsibility, solidarity, love. I believe in structures held together more by a commonly shared feeling of the importance of certain communities than by commonly shared ambitions directed ‘outward.’”

In a later piece, “Politics and Conscience” (1984)*, Havel writes in a Gandhian-like vein that he

“favour[s] ‘anti-political politics’ [which calls to mind the Hungarian writer György (George) Konrád’s Antipolitics (1984)] that is, politics not as the technology of power and manipulation, of cybernetic rule over humans or as the art of the useful, but politics as one of the ways of seeking and achieving meaningful lives, of protecting them and serving them. I favour politics as practical morality, as service to the truth, as essentially human and humanly measured care for our fellow humans. It is, I presume, an approach which, in this world, is extremely impractical and difficult to apply in daily life. Still, I know no better alternative.”

* This was intended for the University of Toulouse where Havel was to be awarded an honorary doctorate but was unable to attend.

References and Further Reading:



  

free web page hit counter
Powered by Feed Informer