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Sunday, January 10, 2010


Three of my posts have provoked comments or criticisms from quite disparate regions of the blogosphere, and while we all sit and wait for the behind the scenes health care reform negotiations to play out, I thought this might be a good time to respond to them.

I. The first comment was posted by Maciek in Poland, to my remarks about natural law. From the evidence of his comment, Maciek is extremely well read in this controversy, and I suspect actually remembers it better than I do. Rather than get into the details of the dispute between H. L. A. Hart and Lon Fuller, I should like to try to sketch my own view of the nature of law. I hope this will speak both to his very interesting comment about Polish government officials from the old regime, and to Ann's comment. From a purely formal point of view, laws are commands by the state that have a universal rather than a particular nature. When a drill sergeant shouts, "At ease!," he or she is addressing only the particular soldier or group of soldiers who are, at that moment, under his or her command. A soldier walking by on the parade ground is under no compulsion to stop and strike the characteristic at ease posture. The command is not in its nature universal. But when the state highway commission posts a sign at an intersection that says "Stop" [or a symbol having the same meaning], that command is intended to apply to any driver approaching the intersection, regardless of who he or she is. The command is by its nature universal. It does not apply to all persons, of course. A pedestrian or a fire engine is not required by the command to stop. Instead, it applies to all persons who are, in the relevant ways intended by the law, identical. It applies to all drivers of private or commercial vehicles, let us say. This is the formal character of law. It was what makes a command a law. States characteristically claim the right to promulgate any laws they choose within the territory and over the population they claim to rule. That is what it is to be a state. When I say that I am an anarchist [a claim, as we shall see, that real anarchists view with some disdain], I mean quite simply that for the reasons set forth in my little tract, In Defense of Anarchism, I hold that all such claims are everywhere and always false. Both sides in the Hart/Fuller controversy, it seems to me, accept the claims of at least some states under some circumstances. The natural law advocates hold, in addition, that only such state claims as meet certain substantive tests [that those claims aim at what is objectively good, or are in conformity with God's law, or whatever] are valid claims. In the modern era, the administration of state law is embedded in an extremely complex system of bureaucratic regulations and formalities, which most of the time are taken by all participants as prima facie evidence of the legitimacy of the commands contained in the laws. Thus, to speak to Maciek's remark about Poland, the judges and government officials in the former regime by and large conformed their actions to the structure of bureaucratic regulations in place during that time, and so they believe that what they were doing was "within the law," and earns them the right to have their pensions, even though, as a result of the revolution, those laws have all been abrogated and the state that issued them has been overthrown. If you accept the foundational claim of democratic theory, that representative democracy confers legitimacy on the commands of the state, then you will believe that in the case of democracies, and only in the case of democracies, laws are morally binding, not merely enforceable by the police, on those whose representatives have enacted them. If, like me, you reject that claim, then you will view the laws of a representative democracy as no different in moral status from the commands of a benevolent dictator.

II. Google, Amazon, and the Intelligence Community

I was idly googling myself the other day to see where I had cropped up in the past week, and discovered to my surprise that my somewhat facetious remarks about Google and Amazon had sparked some comment on another blog, On that blog, my remarks were quoted and attributed to "ex-[left] anarchist Robert Paul Wolff." [Oh well, as they used to say, so long as you spell my name correctly.] But several regular readers of that blog wrote in with quite intelligent objections to my claim that Google and Amazon could have done it better. Let me summarize their objections, expand on them a bit, and then comment. The first objection is that I am confusing designing a new system with retrofitting or revising an existing one. It is always easier to design a new system, this commentator observed, but that is not the problem that confronted homeland security. This is quite correct. It helps to explain why the [new] Japanese steel industry was able to produce steel so much more efficiently than the older American steel industry, which was heavily invested in existing equipment and could only introduce new techniques on the margins. It explains the paradox that a country whose economy has been devastated by war is sometimes in a better position to build anew and compete successfully. But forty billion dollars has been spent since 9/11 on this problem. It is at least worth asking whether it wouldn't have been better to scrap the existing systems and design a new one, writing off the considerable investments in the old system as a sunk cost.

The second objection [more interesting, in my view] was that what Google and Amazon are doing is totally different from what the intelligence commmunity is doing. Google and Amazon are quite happy simply to ignore any portions of their potential market that pose particularly intractable technical problems if they calculate that fixing those problems would cost more than would be returned in income. The intelligence community, on the other hand, cannot afford, in effect, to say, "Well, Yemen is a real problem, so let's forget about them and ramp up our surveillance of Boise, which poses no serious technical issues." This is a really good point. Let me expand on it a bit. Many years ago Seymour Melman, writing about the difficulty of converting wartime production facilities to peaceful use, pointed out that the tasks set a design engineer in private industry were totally dfiferent from those posed to a design engineer in a defense industry. The private sector engineer, let us suppose, is asked to design a toaster that is attractive, can toast bagels as well as slices of bread, can handle three slices at a time, can be adjusted to different degrees of done-ness, will fail no more than once every 15,000 times it is used, and can be sold for $49.95. The defense engineer is asked to design a pilot ejection seat that can fit into a fighter jet, will eject the pilot in .4 seconds far enough from the plane to avoid injury to the pilot, has an automatic parachute, and has enough failsafe backup systems so that it will NEVER fail. This last is crucial, because a pilot's life is at stake. When the engineer asks about cost, he or she is told, "Keep the cost down as much as you can but without sacrificing performance or safety." This is the equivalent of telling Google, "design a system that will work in Yemen as well as Boise, even if that dramatically runs up the cost, because there might be someone in Yemen plotting to blow up an American airliner." This is, I think, a very telling objection to what I said [for all that what I said was facetious, and an expression of my exasperation with the intelligence community.] But the truth is that I do not think technical problems are at issue here at all. Rather, the problem is turf wars, bureaucratic infighting, struggles for budgets and new positions.

The third objection on the website was that my proposal would violate the Constitution and the rights of individuals. Indeed. So does everything the intelligence community does. if you do not want surveillance , on the grounds that it violates individual rights, ok. But inefficient surveillance is as intrustive as efficient surveillance. It just works less well.

III. The third comment came in an email from Mitchell Freedman, who also has his own blog: Mitchell [if I may] came upon my story about Marty Peretz, Mike Walzer, and Al Gore [apparently, someone emailed part of it to someone at the Nation. How things get around!] He said something in his email to me that was deeply troubling, and that I had simply never thought about. If the Supreme Court had not, by a judicial coup, taken the presidency away from Gore, we would have had a President whose closest advisor was Marty Peretz and whose Vice-President was Joseph Lieberman. How would such an administration have responded to the 9/11 attacks, had they not been stopped by a more alert response? That is a really troubling question. I have no doubt Gore would have been better than Bush. A ham sandwich would have been better than Bush. But it is at least worth noting that the issue Gore has made his signature, and that has made him the darling of the left, is in a certain sense non-political, and has nothing to do with Israel, the Middle East, etc. To put it simply, Gore is no Jimmy Carter.

Well, there are my comments on my commentators. Thank you all for caring enough to respond to my maunderings.


Ann said...

It is fascinating that Google not only lists you, but also updates other blogs' references to you on a regular basis!

Re: natural law, your response included the sentence: "The natural law advocates hold, in addition, that only such state claims as meet certain substantive tests [that those claims aim at what is objectively good, or are in conformity with God's law, or whatever] are valid claims."

On the one hand, natural law seems simply an elaborate ideologically- based rationale. On the other hand, property rights advocates still claim the legitimacy of "natural law," even today.

Robert Paul Wolff said...

They do so for the very good reason that the Constitution is based on it! They are not fools. Just as it is an uncomfortable fact that so many of the Founding Fathers were slave owners, so it is an uncomfortable fact, for secularists, that the founding documents are based on a deistic religious faith based not on Revelation but on Reason, and hence not specifically Christian..

Maciek said...

Mr. Professor. I personally deeply agree with Your approach to state's rules and state authority, and I agree, that this discussion between Hart and Fuller was the discourse between two apologists of the state (if I do understand You appropriately), but I have the different problem. It seems to me, the anarchistic institutional order (uff, it sounds strangely!!) is something similar to moral order (of course when we assumed that in anarchism exists something, what we can call with notion of order). As anarchists, we would be subordinated under that rules, which are consistent with our moral autonomy. We needn't be religious persons, we can be atheists, but this rules can't be positivistic in character, because the positivistic rules always assume an external coercion (are always heteronome, not autonome using a Kantian notions). For example, when Kant in "Metaphysics of Morals" designed his proposal of the external law order, he assumed that this law is (in my opinion) - undirectly, but at last - consistent with his categorical imperative using here in the external sphere. Legal order seems to be for him partly (!!! see e.g. his punishment theory) a "derivative" of moral order, and "externalised" rules of this last order can be called "natural laws" (or not?). My question is, how we should understand (and call) this rules, which are not positive laws, as not in a manner of natural laws (like in Ann's example of property rights)? Is that only a verbal question, that we do not call this "natural law"? Is that the question of "human nature" (which is today very often seeing as not existing)? Or it is only a question of religious thinking, in a background of natural rights theory?