Have You Been to the Paper Jungle?

Have you been to the paper jungle?

Most people build their paper houses in the paper plains,

And import the paper bricks.

Or, If they can afford it,

in the valleys surrounded by the paper mountains.

The poor live among the paper swamps.

Perhaps they were paper woods once.

Grew tall and free.

But nature, of which we are all guilty,

Takes its course,

And decay sets in.

And the inks that separates us from animals

Become deadly gasses to madden them.

The pulp becomes quicksand to drown them.

But that’s not the question I asked.

Have you been to the paper jungle?

It’s a curious type you meet there.

Stay too long and soon you’ll feel an itch.

Lift your shirt and you’ll find fragmentary words.

Written sensibly enough,

But no map, nor a compass out.

And you have to wonder where you are.

Spend a day there and the sweet perfumes

Of delectable reason will start to choke.

And the vines?

They grow around open eyes.

The thorns carry the kind of venom

That make you think you started out blind

And just now learned to see.

Unawares, and with the pride of any such explorer,

You cut your way further in.

A machete?

These ancient trees call for scalpels.

And the sweet inky sap seeps out.

You prune for the good of the tree,

And of course to clear a path.

That one day someone may be able to live here.

Surrounded by mercenaries,

(They see nothing but lumber)

You’d like to sit but there’s no room.

Have you been to the paper jungle?

We planted it but are all strangers.

As we cut and burn the world,

it grows.

May it reach the sky. We have no need for clouds.

You may think you see that sky.

You may think it’s beautiful.

But the thin film of the jungle’s sigh is always already there.

Reflections on Ethics of Care and Law

The Law Is Inherently Incomplete–The Shared Sovereignty of Law and Virtue

It is of course observed that an ethic of care may apply wherever there is discretion in the law, and that one of the recommendations for a more caring legal system is to build more discretion in. However, the way discretion is usually talked about is defective in two ways:

1) It is sometimes talked about as if it were only a contingent aspect of the law (i.e. we may choose to write a law with more or less discretion for the judge, e.g. in sentencing).

2) Even when it is talked about as an inherent aspect of the law this is looked at as a defect. For example, realist legal theory tells us there are always going to be gaps, and that this is kind of a dirty little secret for believers in the normative force of the law, because these indeterminate gaps are either filed with arbitrary whim or the structures of power.

In response to the first point, we can agree with the realist that there will necessarily be room for discretion (e.g. in the interpretation and application of the law, in the interpretation and weighing of evidence, etc.), but we can disagree that this is inherently normatively problematic. Rather, we can say that the law by its nature is incomplete, and because it would be unjust (following the realist) to apply this unavoidable discretion arbitrarily or according to mere dictates of power, it must be applied according to some principles. However, because such principles will fall into the same trap as the law itself ad infinitum, the principles that apply must be in some sense “beyond the law”. And so the law comes to depend for the sake of justice (and not as some additional concern) on the virtues of those who practice it, including care. Far from being a defect, this makes the law intrinsically more nimble and morally responsive.

Law as Inhabiting a Life-World

In the Crito, Socrates appealed to a metaphorical/real personal relationship with the Laws of Athens, who “raised” him, to justify not destroying them by breaking them in escaping jail. We can broaden this point about the law’s vulnerability to think about the ways in which the law is dependent on a prior ethic of care for raising the kind of citizens who will, like Socrates, take care of the law when it needs them. I realize this argument is fraught in two ways:

1) It has always been obvious that the law depends on care-giving generally in the way that society does and therefore subordinates care-givers.

2) Where an ethic of care means to care well, to say that the law depends on an ethic of care is to risk identifying an ethic of care with a fairly conservative disposition towards the law. This seems incongruous with the liberatory role that a feminist ethic strives to play.

I think we can resolve both difficulties in one stroke. At least one path for care-giving to subvert its subordinate role to the law is precisely to think more carefully about how to raise children in relation to the law, i.e. inculcating an ethic in them which would lead them not to passivity, but to the kind of active engagement that would see them save the law from its vulnerability to subversion by the structures of power. Obviously, it is expected that free from such abuse such laws would recognize the proper place of care giving. Therefore, it is through the strategic deployment of care, thinking carefully about the law that the relationship between the law and care-giving come to be reconciled in practice instead of just theoretically.

[Note: This idea of the abused law doesn’t have to assume natural law theory (although in my case I am inclined to assume it), because I think the law that is abused is not universal, but particular to that political community, think e.g. Montesquieu. I believe people could accept this while holding different views on whether there is a further underlying law which governs what constitutes abuse.]

Two Paradoxes of Representative Democracy

There are two paradoxes at the heart of representative democracy. The first is that the government is elected by a part of the population but is supposed to rule for the whole population. Of course, politicians always say they do represent everybody, but do we believe them? The second paradox is that once elected, politicians are advised by experts who know a lot more than they do about the things they have to decide on, nevertheless, they make the ultimate decisions. What’s worse is that some studies into what politicians know show they know little more than even the general population.  

I’d like to suggest that these two paradoxes are not problems to be solved but arise from a fundamental misunderstanding of what it means to represent the people, and what it means to have political knowledge. By misunderstanding these basic aspects of democratic decision-making, we have left our institutions of representative democracy open to the twin troubles that have plagued Western democracies since the 70s, increasing polarization and decreasing trust. By understanding these paradoxes and where they come from, we can strive towards more self-aware democratic practices that resist needless polarization and build trust. 

Paradox #1 Who do you work for? 

Unless a government works by consensus, the government elected by some will be required to rule for all. Advocates for electoral reform might suggest proportional representation and coalitions to improve the situation. But even if governments rule with a coalition of parties representing 80% of the popular vote, the basic tension never goes away. Constitutional minority rights and guaranteed seats such as in New Zealand and Lebanon have also tried ensure minorities are represented or at least respected, but these institutional features are too rigid to capture all the ways one can be a minority. Indeed, every policy issue has its minority opinion.  

At its worst, this tension produces cynicism about the whole democratic enterprise (think #NotMyPresident). People do not see a single government for all. Politics is seen as a mere contest in which warring factions and classes attempt to capture institutions. Once the institutions are captured, the concerns of the “barbarians at the gates” (whoever the so-called “barbarians” may be) can be safely ignored, at least for a time. Although these battles may not be fought with arms they work to reinforce existing solitudes and prevent creating the kind of common life which is a precondition of seeking lasting solutions to shared problems.  

This polarization has been dismissively referred to as political tribalism. These diagnoses of the problem miss that these are not simply groups for groups sake, but represent real differences in interests, power, and visions of what a better world looks like. Conflict is also a part of politics not a disease to be gotten rid of. The question is whether democratic institutions are merely another battlefield on which these conflicts can play out or is there a way to think of these institutions that is capable of bringing people together across radical disagreements while respecting those disagreements?  

Paradox #2 Who’s the boss here? 

The second paradox has plagued the public service since it began to professionalize. How are unelected experts supposed to cope with the fact that they must advise democratically elected laymen? This issue has been particularly acute in eras of populist rhetoric. Politicians who “know what the people want” are suspicious and sometimes openly hostile towards “elite” technocrats  (setting aside the professional-elite politician for a moment).

Although these two paradoxes may seem unrelated at first, it is by addressing this second question that we will come to appreciate the first.  

Harold Laswell, the father of “policy sciences for democracy”. Imagined that policy advisors would be like other professionals, such as doctors and lawyers. There is something insightful but incomplete about this analogy though. It is true that, like doctors and lawyers, policy advisors must provide expert advice to a non-expert client in a way that respects their autonomy and empowers them to make the best decision possible. Also like doctors and lawyers, there is a risk of paternalism and control. Recognizing what the layman brings to the table, their knowledge, and the fact that they will ultimately have to live with the consequences is necessary for not only the legitimacy but the quality of the decision. The difference, however, is that for a doctor or lawyer, the client is clear most of the time. It is an individual looking after their own interests. For the policy advisor, their client is a representative. 

The question is who are they a representative of? And we come full circle. By paying close attention to the difference between the type of knowledge experts and laymen have, we can begin to answer this question. As I’ve argued before, the politician is not a representative in the sense that they take direction in some direct way from those they represent. They are a representative in the sense that by being placed in a decision making role, they become subject to all the political pressures impinging on a particular decision and thereby experience in a direct way the political dimension of the shared reality which their constituents only feel in a latent and diffuse way. Although a system in which all citizens are active will likely tend to create a more accurate and less skewed picture of that reality, it is not in principle necessary that everyone should participate all the time, only that everyone MUST be considered in any given decision should they have a view or be affected. [In order to both get at this information and guard against distortions, it is therefore necessary that individuals should have the fullest participation rights.]

 

Ultimately, I believe it is only by appreciating these paradoxes that we can achieve the full democratic potential of the existing systems and grapple with unavoidable logistical limitations of any future systems.

Lawyers and Civil Society

It seems to me that civil society organizations often harbour suspicion of lawyers. The lawyer’s function is to integrate the civil society organization into the broader machinery of the state’s demands (i.e. law), though in the way which most facilitates the aims of the organization and not the state. The lawyer, therefore, is like lubricant for a creature that must pass through a machine of crushing gears. This suspicion is in one way warranted and in one way not.

The Warranted Suspicion: Lawyers as agents of the state

At the simplest level, law represents paperwork and restrictions that civil society organizations don’t have time for. They much rather spend their time and resources pursuing the needs of their community without having to compromise their plans to suit some abstract demands of legislation or case law. Lawyers, since they will tend to be more aware of paper work and restrictions, therefore, are viewed as agents or at least harbingers of these obstacles.

This tension is fundamental to civil society. After all, civil society is by definition that which is outside the state. The more demands the state makes on the civil society organization, therefore, the more it loses its essential characteristic, and therefore vitality and unique advantage. This is without saying anything about the content of the state’s demands and the goals of the civil society organization. If the organization is pursuing some goal antithetical to the government, the lawyer’s job becomes integrating the organization in a system that may well contradict the existence of the organization or at least its goals (and thereby render the organzation impotent).

Since it is not possible to enter the machine without being ground up, the lubricant is of no help. It serves the well-being of the machine, but it is best for the entity to simply remain outside.

The Unwarranted Suspicion: Lawyers as Mediators Between State and Civil Society

The state, at its best, is the institutional embodiment of the wills of the various individuals, communities, and other entities that fall within its jurisdiction. So while its functioning may well be to the ends of an elite subset; nevertheless, as a practical matter, it must be able to process all that enters it. By remaining outside of it, therefore, one forfeits an opportunity to shape its functioning by forcing it to be designed in such a way as to effectively process that which runs through it.

The lawyer is one potential engineer of how this redesign may take place and it is advantageous to civil society organizations, if they hope to project their ideal beyond their immediate communities, to have some say in how the machine will need to be redesigned to accommodate its introduction into its gears.

How Porous is your Government?: A Scale of Democracy

The more porous a decision-making institution is, the more democratic it is. By porous, I don’t necessarily mean that it takes in everything. Indeed, a truly democratic institution should be able to filter out quite a bit, both because it is irrelevant, manipulative or simply external. Rather, it must be porous in the sense that it must be able to absorb in proper proportion the experiences (what) and wills (who) of those who ought to have a share in the decision-making.

Of course, who that is is a loaded and primary question. But even if it is determined, that is merely a first step. What is then necessary is not always that everyone should speak but rather that in any given decision, if they are affected, the effect on each person should be accounted for as mattering to the ultimate decision (their whatness, i.e. they are merely facts, but facts that matter); and that if they choose to speak, that they be fully heard not because of the merit of anything they have said but because the fact that it is their will makes it intrinsically relevant (their who-ness, i.e. they are not only data in some grand political calculus, but also play a role in positing how to solve the equation).

To exaggerate anyone’s significance according to either of these factors, would necessarily be to discount others, to crowd out others, and to create a more opaque system. Of course, the most opaque system is the one in which the single ruler rules entirely by discretion, which is to say according only to their own will. It is trivial to observe that some people have much better access to collective decision-making institutions than others. However, it is perhaps less well observed the ways in which collective decision-making institutions lack access to those who ought to be accounted for.