Of the Liberty of Subjects by Thomas Hobbes — A Summary


Hobbes, Thomas. [1651] 1929. “Of the Liberty of Subjects.” In Leviathan, Reprint of the 1651 Edition, 161–171. London: Clarendon Press.


This Chapter from the Leviathan is the germ of the liberal (negative) notion of freedom. The first four sections along with a little excursion into Chapter VI for making sense of Hobbes’ understanding of the will (especially important as a contrast to the views of theorists of positive freedom such as Kant and Green) should be sufficient. The rest of Chapter relates this idea of freedom to his larger philosophical project. I leave out the what is really the last section that inventories the liberties that the individual subject is left with after making the covenant.


Liberty What

Liberty, properly understood, is the absence of “Opposition”. Opposition means “externall Impediments of motion”. Note three aspects of Liberty: (a) liberty has to do with (the lack of) an impediment or interference; (b) that impediment is external i.e., the source of that impediment is someone or something else; and (c) the impediment “stops” motion, i.e., the impediment is physical. This idea is as applicable to rational subjects as to inanimate objects. A man chained to a bed is unfree in the same way that water in a vessel is unfree. If the impediment is not external, say a man is so sick that he us unable to move, it is not liberty that is wanting but merely the power to move.

What It Is To Be Free

A FREE-MAN, thus, is “he, that in those things, which by his strength and wit he is able to do, is not hindred to doe what he has a will to.” Liberty has relevance only with respect to movable bodies [stone, water, man] but not to non-bodies because what cannot be moved [free gift, free way, free speech] cannot be impeded. Consider especially free-will. It makes sense to talk about free-action [meaning there is “no stop” or impediment] of a person arising from his will but it makes no sense to talk about free-will in itself as a faculty.

When in the mind of man, Appetites and Aversions, Hopes and Feares, concerning one and the same thing, arise alternately; and divers good and evill consequences of the doing, or omitting the thing propounded, come successively into our thoughts; so that sometimes we have an Appetite to it, sometimes an Aversion from it; sometimes Hope to be able to do it; sometimes Despaire, or Feare to attempt it; the whole sum of Desires, Aversions, Hopes and Feares, continued till the thing be either done, or thought impossible, is that we call DELIBERATION.

In Deliberation, the last Appetite, or Aversion, immediately adhaering to the action, or to the omission thereof, is that wee call the WILL; the Act, (not the faculty,) of Willing.

[Leviathan, Chapter VI: Of the Interiour Beginnings of Voluntary Actions]

Feare And Liberty Consistent

“Feare and Liberty are consistent.” To act out of fear is nevertheless to act freely. Consider a sailor throwing overboard his goods so that the ship may not sink. Consider further a person who obeys the laws of the Commonwealth for fear that he might be punished. Both are not impeded externally from throwing the goods overboard or from disobeying the laws. Their actions are those of a free person.

Liberty And Necessity Consistent

“Liberty and Necessity are Consistent.” All actions that men perform are ultimately necessary actions. The Liberty of man “in doing what he will, is accompanied with the Necessity of doing that which God will”.

[E]very act of mans will, and every desire, and inclination proceedeth from some cause, which causes in a continuall chaine (whose first link in the hand of God the first of all causes) proceed from Necessity.

Artificiall Bonds, Or Covenants

Men have made an Artificial Man (i.e., the Common-wealth) for the preservation of peace and have made Artificial Chains (i.e., Civil Laws) to which they have tied themselves through mutual covenants or contracts. These chains/bonds hold because of the danger that arises in breaking them.

These Bonds in their own nature but weak, may neverthelesse be made to hold, by the danger, though not by the difficulty of breaking them.

Liberty Of Subjects Consisteth In Liberty From Covenants

[I]n all kinds of actions, by the laws praetermitted [intentionally disregarded], men have the Liberty, of doing what their own reasons shall suggest, for the most profitable to themselves.

If we understand liberty properly [see the first section], then men are manifestly free and it is absurd for them to clamour for liberty. Therefore, it is in the context of the artificial bonds (or civil laws) that liberty will be discussed. But the existence of these bonds is, “without a Sword in the hands of a man, or men”, no guarantee for liberty. “The Liberty of a Subject, lyeth therefore only in those things, which in regulating their actions, the Soveraign hath praetermitted.”

Liberty Of The Subject Consistent With Unlimited Power Of The Soveraign

To say that the sovereign has disregarded certain things which men are at liberty to do does not mean that the sovereign “Power of life, and death, is either abolished, or limited”. Nothing that the sovereign does to a subject can be unjust or injurious for the subject himself is the author of the sovereign’s actions. David did no injustice in killing Uriah for, by the covenant, Uriah had given David the right [2 Sam. 11].

The Liberty Which Writers Praise, Is The Liberty Of Soveraigns; Not Of Private Men

The liberty that finds frequent and honourable mention in historical and philosophical discussions is the liberty of the the Common-wealth and not of particular men. In a state of nature without civil laws, the same liberty would indeed be available to private persons. But such a state no longer exists. This liberty of the Common-wealth, which corresponds to the liberty of individuals in the state of nature, must not be mistaken for a “Private Inheritance, and Birth right”. Such deception leads to sedition and destabilises governments.

And by reading of these Greek, and Latine Authors [Hobbes explicitly mentions Aristotle and Cicero], men from their childhood have gotten a habit (under a false shew of Liberty,) of favouring tumults, and of licentious controlling the actions of their Soveraigns; and again of controlling those controllers, with the effusion of so much blood; as I think I may truly say, there was never any thing so deerly bought, as these Western parts have bought the learning of the Greek and Latine tongues.


 

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Groundwork for the Metaphysics of Morals by Immanuel Kant — A Summary of the First Section


Kant, Immanuel. (1785) 2002. Groundwork for the Metaphysics of Morals. Edited and translated by Allen W. Wood. New Haven: Yale University Press.

This translation is faithful to the original. Translated, forgive the pun, that means it’s a difficult read geared towards the advanced, perhaps critical, reader. Translator’s note: “I have tried to reproduce the same murkiness and cumbersomeness in English that the German reader would encounter.” p. xiii.

If this is your first read, see Jonathan Bennett’s very accessible translation at earlymoderntexts. You will come back to more faithful translations later anyway. 🙂

As a minimum, bear in mind that the term “practical” has a not unrelated but crucially different meaning from how we would use it in day-to-day conversation. If you don’t follow, it is absolutely necessary that you read the first section of the Stanford Encyclopedia of Philosophy entry on Practical Reason.


Summary of the Preface


Transition from Common Rational Moral Cognition to Philosophical Moral Cognition

Only a good will is necessarily [absolutely/perfectly/without limitation or qualification] good. Talents of the mind like understanding and wit, qualities of temperament like courage and persistence and gifts of fortune like wealth and health are only contingently good for they may be used for evil and harm by a bad will. The same goes for even for qualities like moderation, self-control, and sober reflection which might at first appear to ‘constitute part of the inner worth of a person’.

The good will is good in itself. It does not derive its goodness from its efficacy or its effects but from its mere willing.

Even if through the peculiar disfavor of fate, or through the meager endowment of a stepmotherly nature, this will were entirely lacking in the resources to carry out its aim, if with its greatest effort nothing of it were accomplished, and only the good will were left over (to be sure, not a mere wish, but as the summoning up of all the means in so far as they are in our control): then it would shine like a jewel for itself, as something that has its full worth itself. Utility or fruitfulness can neither add to nor substract anything from this worth.

This appeals to our common reason but, all the same, there seems something very strange about the insistence on the ‘absolute worth of the mere will’. For if we accept as a principle that all beings are naturally and necessarily arranged purposively for a suitable and appropriate end, and if we further accept that a being that has reason and a will is arranged for securing happiness, it is apparent that nature has hit on ‘a very bad arrangement in appointing reason to accomplish the aim’: instead, happiness would be sought more precisely and accomplished more safely by instinct.

Nature would have taken over the choice not only of the ends but also of the means, and with wise provision entrusted both solely to instinct.

This is because we find that the more cultivated reason is, the further it frustrates the pursuit of happiness so much so that the people most cultivated in reason develop a hatred for reason and start envying rather than despising people closer to natural instinct.

Reason is a bad instrument for pursuing and accomplishing happiness, but since it has been imparted to us as a practical faculty holding sway over the will, its purpose must be something other than securing happiness. Its purpose — and we have accepted that every capacity is assigned to an appropriate end — must be to produce a will good in itself.


To develop the concept of the good will, we will examine the concept of duty. We will differentiate between actions performed from duty and actions performed for other reasons in order to determine the moral worth of actions. We shall ignore (a) actions that conflict with duty as well as (b) actions which do conform to duty but are performed with no immediate inclination, i.e., driven by another inclination, to secure a further good, for the attainment of which the action performed is necessary as a means. The question of duty does not arise in the former and in the latter, it is easy to see that the action was performed to secure a further good. The interesting cases are those in which (c) the action is performed from duty and is driven by an immediate inclination, i.e., the results of the action are what’s actually desired.

Consider a shopkeeper who does not overcharge any of his customers. This conforms to duty and his customers are honestly served. However, we cannot assume that it is only the good of the customers that he has in mind. Also, it is obvious that it is in his interest to maintain a consistent price so that his business can flourish in the long run. The point then is that his actions are not done solely from duty nor from what the actions might immediately result in [the good of the customers] but instead from a self-serving aim [the success of his business]. His actions thus have has no moral worth.

Consider this other case. Preservation of life is a duty and people not only conform to it but also have an immediate inclination towards it. Still, the preservation of life happens in conformity with but not from duty and thus has no moral worth. But when faced with hopelessness and insurmountable adversities, and having lost all taste and love for life, a person still preserves life from duty, there is moral worth.

Consider further, a sympathetic soul who, without vanity and without concern for utility, delights in helping others and spreading  joy. Such a soul is still short of achieving true moral worth however amiable and praiseworthy his actions are, they are still inclinations. Suppose now that the same soul is beset with such personal grief that he no longer has the emotional resources to feel sympathy for others’ distress. If he still continues to help others and spread joy no longer out of any inclination but from duty, his actions would now have authentic moral worth.

Even more: if nature had put little sympathy at all in the heart of this or that person, if he (an honest man, to be sure) were by temperament cold and indifferent toward the sufferings of others, ... would he not find a source within himself to give himself a far higher worth than that which a good-natured temperament might have? By all means! Just here begins the worth of character, which is moral and the highest without any comparison, namely that he is beneficent not from inclination but from duty.

Securing happiness is itself a duty, even if only an indirect one, because the lack of happiness can undermine the performance of duties. But the precept of happiness often infringes upon other inclinations. Now, consider a diabetic who nevertheless chooses to continue to eat and enjoy what he likes [gives in to inclination] regardless of future consequences [without considering future happiness]. Still, this does not mean that the injunction to preserve his health from duty [and not out of concern for happiness, which he has rejected] does not apply to him. His conduct would have moral worth if only he follows this injunction.

Summing up, only those actions have genuine moral worth if they are done out of a singular commitment to duty. This is the first proposition.

Having established this proposition, the second proposition is that an action from duty derives its moral worth not from its aims nor even their actualisation but only from the principle on which it is performed. Put differently, its moral worth lies not in the material incentive [aim] realised a posteriori but in the in the formal principle of the will which is determined a priori.

The third proposition, adding the two together, is that duty is the necessity of an action from respect for the law. That’s to say: to act out of duty requires that that act be performed out of respect for the law. Neither the object of the action (because the object is merely the effect and not the principle of the will) nor the inclination driving the action (for the same reason, i.e., inclination is not the principle of the will) can get respect.

This means that any action from duty derives nothing from [i.e., “is supposed entirely to abstract from”] inclination and its effects. Given this, what moves [causes (but bear in mind that the word ‘cause’ has tremendous philosophical baggage)] the action is, objectively, the mere law  and, subjectively, pure respect for this law. From this follows the maxim (the subjective principle of the will) that that law must be complied with even if compliance infringes one’s inclinations.

The moral worth of the action thus lies not in the effect to be expected from this expected effect. For all these effects (agreeableness of one's condition, indeed even the furthering of the happiness of others) could be brought about through other causes, and for them the will of a rational beings is therefore not needed; but in it the highest and unconditioned good can nevertheless be encountered. Nothing other than the representation of the law in itself, which obviously occurs only in the rational being insofar as it, and not the hoped-for effect, is the determining ground of the will, therefore constitutes that so pre-eminent good which we call ‘moral’.

What kind of law could this be?  Since the will cannot obey the law out of inclinations, what leads it to obey the law is its universalisability. This law derives its force from the fact that it can be willed to be/made universal. In other words, it ought to be possible for me to will that the maxim guiding my action become a universal law.

[I]t is mere lawfulness in general (without grounding it on any law determining certain actions) that serves the will as its principle, and also must so serve it, if duty is not to be everywhere and empty delusion and a chimerical concept. 

Consider this. Should you make a promise with no intention of keeping it if you are in an extremely difficult situation? This might be prudent sometimes but often, doing so will have worrisome consequences for you later on. Perhaps, it’d be prudent then to adopt it as a universal maxim to always keep promises. But realise that this maxim of prudence is grounded in the fear of worrisome consequences.

Now to be truthful from duty is something entirely different from being truthful out of worry over disadvantageous consequences; in the first case, the concept of the action in itself already contains a law for me, whereas in the second I must look around elsewhere to see which effects might be bound up with it for me.

To return to the question, you should ask yourself if a maxim of making a promise you have no intention of keeping could be valid as a universal law. It becomes immediately clear that one could not will that the maxim to be a universal law for in that case, i.e., if everyone made promises they had no intention of keeping, promises would become pointless: “the maxim, as soon as it were made into a universal law, would destroy itself”. Now, one need have no special shrewedness in order to realise this; in effect, then, we need no special training to will a good will. One need only ask the question: “can you will also that your maxim should become a universal law?”

The necessity of my actions from pure respect  for the practical law is what constitutes duty, before which every other motive must give way because it is the condition of a will that is good in itself, whose worth surpasses everything.


Common human reason [common rational cognition], without having to think abstractly, we’ve discovered, is capable of comfortably navigating its way around questions of good, evil and duty. In fact, common reason’s faculty for practical judgment displays its  potency especially when all incentives from perceptions of sense [or, inclinations] are excluded. It gets to determining the worth of actions and, whats more, actually has a better hope of success than any philosopher who is often confused by a plethora of quite irrelevant considerations that the man of common reason refuses to consider. As such, it is more appropriate to start moral enquiry with common reason and bring in philosophy only to make the enquiry more comprehensive, consistent and convenient (for use).

Even wisdom — which consists more in deeds and omissions than in knowledge —  also needs science, not in order to learn from it but in order to provide entry and durability for its precepts.

Yet, even after having established these commands of duty as worthy of esteem, we naturally feel drawn to our inclinations and needs. “Now reason commands its precepts unremittingly, without promising anything to inclinations, thus snubbing and disrespecting, as it were, those impetuous claims, which at the same time seem so reasonable (and will not be done away with by any command).” From this arises a natural dialectic, a discord if you will, between the injunctions of reason and the assertions of inclination.

“Thus common human reason is impelled, … to go outside its sphere and to take a step into the field of practical philosophy, in order to receive information and distinct directions about the source of its principle and its correct determination in opposition to the maxims based on need and inclination, so that it may escape from its embarrassment concerning the claims of both sides and not run the risk of being deprived, through the ambiguity into which it easily falls, of all genuine ethical principles.”


 

 

The Idea of Equality by Bernard Williams — A Summary


Williams, Bernard. 2005. “The Idea of Equality.” In In the Beginning Was the Deed: Realism and Moralism in Political Argument, edited by Geoffrey Hawthorn, 97–114. Princeton: Princeton University Press.

Originally appeared in P. Laslett and W. G. Runciman. eds. 1962. Philosophy, Politics and Society: A Collection. Oxford: Basil Blackwell.


 

In political discussion, the idea of equality is asserted in statements of fact — that people are equal — as well as in statements of principles or aims — that people should be treated equally. The problem is that the idea, in both instances, can be interpreted too strongly or too weakly.

The two go significantly together: on the one hand, the point of the supposedly factual assertion is to back up social ideals and programmes of political action; on the other hand, those political proposals have their force because they are regarded ... as affirming an equality which is believed in some sense already to exist, and to be obscured or neglected by actual social arrangements.

Regarding the first, one could claim strongly that all people are equal in all those respects that warrant equal treatment. This would amount to peddling in patent falsehood for people are in fact not equal in all respects. Yet, to say that it is in our common humanity, that is, in the mere fact that we are all humans, that we are equal would be to say nothing useful.

Regarding the second, the principle cannot possibly demand that everyone should be treated alike in all circumstances (or even as much as possible). But, the principle cannot also be reduced to the mere claim that different people should be treated differently. This amounts to saying that for every difference in the way people are treated, some general reason or principle of differentiation must be given. One could, on this weak interpretation, simply justify discriminatory treatment towards, for instance, women by saying that women are different!

The goal of the essay then is to “advance a number of considerations that can help to save the political notion of equality from these extremes of absurdity and of triviality. … These considerations will … enable us, starting with the weak interpretations, to build up a position that in practice can have something of the solidity aspired to by the strong interpretations”.


Common Humanity

The assertion of our community is certainly insufficient for the idea of equality but it is still substantial. It entails not just the recognition that we belong to the species homo sapiens, speak a language, use tools, live in societies and so on, but also the realisation of other less obvious but important characteristics such as the capacity to feel pain (physical or otherwise), affection, frustration and the like. These second group of characteristics important for the idea of equality for there are and have been political arrangments that neglected these characteristics in the case of certain groups.

[T]hat is to say, they treat certain people as though they did not possess these characteristics, and neglect moral claims that arise from these characteristics and which would be admitted to arise from them.

One could object that the neglect of these characteristics is only on the level of moral claims. In other words, it is not the presence of these characteristics but their moral relevance that is neglected. For instance, a slave owner could  claim that the blacks are being discriminated against not because they don’t have the capacity to feel pain (he might well concede this fact) but because of some further characteristic, perhaps  the fact that they are black.

This objection assumes a sharp distinction between fact and value and effectively asserts that for any fact such as the capacity to feel pain or the colour of the skin to become a matter of moral relevance, one has to engage in moral evaluation and thus commit to a moral principle. The slave owner is, in this view, adopting a particular moral principle. However, to make the capacity to feel pain morally irrelevant but the colour of the skin morally relevant is no moral principle but a purely arbitrary assertion. In any case, this is conceded by even those who practice colour discrimination.

If any reasons are given at all, they will be reasons that seek to correlate the fact of  blackness with certain other considerations ... such as insensitivity, brute stupidity, and ineducable irresponsibility. Now these reasons are very often rationalizations, and the correlations claimed are either not really believed or quite irrationally believed by those who claim them. But this is a different point; the argument concerns what counts as a moral reason, and the rationalizer broadly agrees with others about what counts as such.

The point is that “those who neglect the moral claims of certain people that arise from their human capacity to feel pain, and so forth, are overlooking or disregarding those capacities; and are not just operating with a special moral principle.” This beings so, the assertion of the platitude that we are equal in that we are all human beings carries great weight. To this capacity for pain could be added even less obvious needs such as the “desire for self-respect” and suchlike characteristics.

Moral Capacities

So far, the respects in which people can be counted alike —  the capacity to suffer, the need for self-respect — has been negative i.e., people have been understood as recipients in certain moral relations. However, people are also thought equal in certain positive respects i.e., things that they can achieve — the capacity for virtue or the capacity for achieving the highest moral worth.

This notion is problematic because there are no purely moral capacities. Some capacities are more relevant for the attainment of virtue — the capacity for intelligence as opposed to, say, the capacity to lift heavy objects, for instance — but such capacities can also be exercised in non-moral matters — in an examination, for instance. And in such non-moral matters, such capacities would be understood as differing from one person to the next just like other natural capacities.

There are some who contend that moral worth has nothing to do with natural capacities as these capacities are are unequally and fortuitously distributed. Immanuel Kant [Groundwork of the Metaphysic of Morals 1785, see the Second Essay/Section] epitomises such a view by claiming that the only consideration of relevance for moral worth is that everyone is equally a rational moral agent and that on this basis alone, everyone is owed an equality of respect. All other contingent and empirical capacities of natural excellence or lack thereof are irrelevant. Kant makes this detachment (of moral worth from contingent and unequal natural capacities) workable at a great cost: by making the rational moral agency of the person a transcendental characteristic independent of the unequal natural capacities that people have.

The difficulty here is the fact that the moral agent and ideas of responsibilty — “presumably the central case of treating them as moral agents” — that attaches to him must have an empirical basis to have any relevance.

It seems empty to say that all people are equal as moral agents, when the question, for instance, of people’s responsibility for their actions is one to which empirical considerations are clearly relevant, and one which moreover receives answers in terms of different degrees of responsibility and different degrees of rational control over action.

Yet, even if we reject the transcendental basis for the notion of respect, the notion need not be rendered meaningless. For, there is certainly a difference between treating a person from a technical point of view and from his own point of view. To illustrate, one could look at a plumber or a person who has spent his life trying without success to invent a certain machine and pass the technical judgment that both are failures. This judgment might be accepted from the “technological point of view”.

But of course,  professional “titles” [the fact that one is a  “plumber” or a “junior executive”] or the failures or successes of ones activities are not the only relevant considerations. The plumber might be doing his job out of desperation or because he wants to be one. Also, despite failing, the inventor’s devotion to his work and his desire to succeed are relevant for him. The point is that human beings are conscious beings with intentions and purposes and that people should be considered from this “human point of view”.

Still, this leaves problematic the issue of cases where people are exploited and degraded to such a degree that they “do not see themselves differently from the way they are seen by the exploiters; either they do not see themselves as anything at all, or they acquiesce passively in the role for which they have been cast.”

In any case, “[the fact that human beings are conscious beings with intentions and purposes] enjoins us not to let our fundamental attitudes to people be dictated by the criteria of technical success or social position, and not to take them at the value carried by these titles and by the structures in which these titles place them. This does not mean, of course, that the more fundamental view that should be taken is in the case of everyone the same: on the contrary. But it does mean that everyone is owed the effort of understanding, and that in achieving it, people should be abstracted from certain conspicuous structures of inequality in which we find them.”

In passing this injunction, it is being assumed that  people are beings who are necessarily and to some indeterminate extent conscious of themselves and of the world they live in. And the reflective consciousness that people have about their situation or their “titles” may be enhanced or diminished by their social condition. This social element is what makes the considerations relevant for issues of political equality. On its own, the mere injunction that “everyone is owed the effort of understanding” has nothing to do with political equality.

One could, I think, accept this [injunction] as an ideal, and yet favour, for instance, some kind of hierarchical society, so long as the hierarchy maintained itself without compulsion, and there was human understanding between the orders. In such a society, everyone would indeed have a very conspicuous title which related him or her to the social structure; but it might be that most people were aware of the human beings behind the titles and found each other for the most part content, or even proud, to have the titles that they had.

Equality in Unequal Circumstances

So far, the considerations have been about cases where people have been understood to be equal. But the idea of equality is invoked even in cases, especially with respect to distribution of or access to goods, where people are agreed to be unequal. In such cases, a distinction may be drawn between inequality of need and inequality of merit. In the former, it may safely be presumed that that those who need the good actually desire it — for instance, those who are ill actually need/desire medical care.

In the latter, the same presumption cannot be made for all instances — for instance, those without merit may legitimately desire a university education/those with merit might legitimately not want it. There is a competitive element to the case of merit and as such, we have to consider not just the distribution of the good [in this case, a university education] but also the distribution of the opportunity for achieving that good which might conceivably be distributed equally. This is the idea of the equality of opportunity.

In both cases of need and merit, the matter of the relevance of reasons (for needing treatment, or getting admitted to a university) appears. Lets take the case of need to illustrate. Ill health a necessary condition for getting medical treatment. But in many societies, ill health is not a sufficient condition with money serving as a further requirement. The notions of equality and inequality have to be now applied to the rich ill and the poor ill (and not just the the well and the ill as we should). This is an irrational state of affairs.

One might object that ill health is at most a ground of the right to receive medical aid but that it does not warrant its fulfilment. A person might have the right but not the power or resources to actually secure those rights. In other words, the reasons are insufficiently operative.

There is something in the distinction that this objection suggests: there is a distinction between people’s rights, the reasons why they should be treated in a certain way, and their power to secure those rights, the reasons why they can in fact get what they deserve.

The combination of the relevance and the operativeness of reasons forms a genuine moral weapon which can be marshaled in cases where people are agreed to be unequal without at the same time being concerned with the equality of people as a whole. This strengthens the weak principle [that for every difference in the way people are treated, some general reason or principle of differentiation must be given] by stipulating that the reasons thus given be relevant and operative.

Similar considerations apply to cases of merit. One difference to keep in mind however is that, while in the case of need, it is clear that certain sorts of need warrant certain corresponding goods [illness warrant medical treatment], in the case of merit the connection is not clear [academic capability warrants a university education?]. If a person objects to the institution of expensive private schools for being unequally accessible to intelligent but poor students, a defender could either claim that the right to access is not a sufficient condition or he could even, radically, dispute that there is any connection between intelligence and the subsequent right to a superior private education. This is not to survey such disputes but to augment the point already established that for differences in the way that people are treated, reasons should be given.


Now, the political sense of the notion of equality of opportunity — understood to mean providing equal opportunity for everyone in society to secure certain goods — will be considered. This notion requires that a good, whatever it is, (a) is desired by large numbers of people, (b) can be achieved earned or achieved, and (c) cannot be secured by all those who might desire it.

The third requirement covers at least three different cases: the good may be necessarily limited —  it cannot be both be secured by everyone and continue to be that good e.g., positions of prestige; the good may be contingently limited — not everyone actually manages to fulfil the conditions necessary to secure it even if all conceivably might; and the good may be fortuitously limited — there is simply not enough of it for everybody.

The notion of equality of opportunity may be construed as a notion that stipulates that a limited good shall in fact be distributed on grounds that do not exclude any section a priori. However this formula is problematic. For instance, a senior secondary school might allocate its seats based on the ability of applicants as shown by their Class 10 marks as opposed to, say, their physical height. This appears perfectly reasonable.

But doesn’t this already exclude certain people, namely those securing grades below a certain threshold, just as the other condition would, if implemented, exclude people below a certain height? Perhaps the exclusion might be admitted based on some appropriate and rational ground(s). However, there is no easy way out of this puzzle. For it would allow people to  claim that it is quite appropriate and rational to filter applicants based on height — which, given that the goal of the school is to educate, is patently absurd.

The notion of equality of opportunity thus is more complex that it initially appeared. Not only should there be no exclusion from access except on appropriate and rational grounds but those grounds should also be such that everyone has an equal chance of satisfying them. Consider a society where prestige is attached to a warrior class whose duties require great physical strength and which has traditionally been constituted by the wealthy families even though recruitment to the class is open everyone. This, we might further suppose, is because the wealthy have a better diet than the malnourished poor who therefore cannot compete effectively.

There appears to be equality of opportunity here — the recruitment process is open to all and the ground for selection/exclusion seems quite appropriate. But of course it would be cynical to claim that this is genuine equality of opportunity. The causal connection between being poor and being undernourished and therefore being physically weak is too obvious to miss. Also, it is apparent that the notion of equality of opportunity can be made more effective by balancing the skewed distribution of wealth and resources.

It appears then that for equality of opportunity to be genuine, no section should be at a disadvantage especially if that disadvantage can be removed by some rearrangement or redistribution of resources when seeking access to the good being allocated. The problem however is that such clear causal connections as present in the imaginary example do not obtain in real world cases.

In any case, equality of opportunity includes not just the the equalisation of grounds that are applied, to reuse the imaginary example, to select the warriors but also the alterable circumstances under which those participants lived, that’s to say their wealth and diet, which have a bearing on those very grounds. The participants should be abstracted, in other words, from their unequal circumstances and this abstraction is involved in equality of opportunity.

Where should this [the abstraction of individuals from their circumstances] stop? Should it even stop at the boundaries of heredity? Suppose it were discovered that when all curable environmental disadvantages had been dealt with, there was a residual genetic difference in brain constitution, for instance, which was correlated with differences in desired types of ability; but that the brain constitution could in fact be changed by an operation. Suppose further that the wealthier classes could afford such an operation for their children, so that they always came out at the top of the educational system; would we then think that poorer children did not have equality of opportunity, because they had no opportunity to get rid of their genetic disadvantages?

... Our objections against the system suggested in this fantasy must, I think, be moral rather than metaphysical. They need not concern us here.


Various conflicts beset the idea of equality. It is not inappropriate, for instance, to feel that “a thoroughgoing emphasis on equality of opportunity must destroy a certain sense of common humanity which is itself an ideal of equality”. Also, the idea requires that both that certain goods which carry with them some status or prestige be distributed and also that, at the same time, we consider people independently of those very goods and the status that comes associated with them.

“When one is faced with the spectacle of the various elements of the idea of equality pulling in these different directions, there is a strong temptation, if one does not abandon the idea altogether, to abandon some of its elements. …It is an uncomfortable situation, but the discomfort is just that of genuine political thought. It is no greater with equality than it is with liberty, or any other noble and substantial political ideal.”


 

 

The State of Exception as a Paradigm of Government by Giorgio Agamben — A Summary


Agamben, Giorgio. 2005. “The State of Exception as a Paradigm of Government.” In State of Exception, translated by Kevin Attell, 1st ed., 1–31. Chicago: The University of Chicago Press.


This chapter is dense. Very.

The admittedly (very) long extras set in monotype are extracts from elsewhere in the text itself or culled from relevant resources elsewhere. They are merely explanatory and added as additional help since the text assumes your familiarity with extremely weighty concepts. The slightly advanced reader can skip these sections.


1.1. A theory of the state of exception needs to be articulated.

The state of exception “defines a special condition in which the juridical order is actually suspended due to an emergency or a serious crisis threatening the state. In such a situation, the sovereign, i.e. the executive power, prevails over the others and the basic laws and norms can be violated by the state while facing the crisis.” [David Giordanengo “The State of Exception”]

1.4. The state of exception is the “suspension of the juridical order itself”.

It was Carl Schmitt who established the contiguity between the state of exception and sovereignty by defining the sovereign as “he who decides on the state of exception” [he starts Political Theology (1922) with this classic definition]. Schmitt’s work was the first rigorous attempt to construct a theory of the state of exception. The point being that that theory is somehow incomplete/deficient/defective.

What gives the sovereign that special capacity to see that there is an exception, a state of emergency, and consequently decide on it? Does the sovereign become sovereign  because he can decide on the exception, or is it rather the case that he can decide on it because he is already sovereign? Depending on the answer, the hyperbolic truth enunciated by Schmitt acquires a different meaning.

In the first case, any person with special powers (or even simply a special sensibility) could be recognized as sovereign. This would be an honorary status conferred on him. The implication here would be that there actually is, objectively speaking, an exception and the sovereign is he who can recognize and handle it.

In the second case, the sovereign is he who has the power (in the strictly political, institutional sense — a power always grounded in violence) to decide on the exception. ... [T]he exception itself can be a mere fabrication of the sovereign, which acquires dubious legitimacy on the basis neither of ethics nor of a violence travestied as force of law, but of mere and raw violence. In this case, it is not the exception, the state of emergency, which calls forth the sovereign decision, but the other way around, the sovereign decision creates the exception, or state of emergency.

In Schmitt, the concept of the exception makes sense because it is contained in the concept of the sovereign; it is the sovereign. ... [I]t is not the case that the sovereign realizes that there is an objective state of need and thereupon he acts decisively. Instead, the sovereign chooses which state is to be raised to the level of the exception, or simply fabricates it. [See Section 1.10.]

It is easy to see that, despite its brilliance and internal logical coherence, Schmitt’s doctrine is also deeply flawed. It says that the decision on the exception is a privilege of the sovereign, that the sovereign is a sovereign precisely in virtue of his capacity to decide; yet, it does not say how he receives this capacity nor why is this capacity not generalized to become a privilege of each and every individual.[Bruno Gulli “The Sovereign Exception”]

Of course articulating such a theory is a difficult — some might say, an illegitmate — task. For how can the state of exception, founded as it is on the the state of necessity, which has no law [see Section 1.9.], have a juridical form?

2.1. Schmitt knows perfectly well that because it [added: the state of exception] brings about a “suspension of the entire existing juridical order” the state of exception seems to “subtract itself from any consideration of law” and that indeed “in its factual substance, that is, in its core, it cannot take a juridical form” [Page 32–33]

Also, given its position at the limit — no-man’s land, ambiguous zone — between politics and law, the state of exception defies even definition let alone theorisation.

Perhaps the best way to explain the state of exception is by reconstructing the problem, at least in the way it is presented in the case of modern liberal democracies. We start with a constitutional order built on a scheme of separation of powers and a list of individual rights enforceable by individuals against the state. If a problem arises between members of this political community, in an adequate governability framework we would expect it to be addressed by public bodies according to the constitutional division of functions. This would be so either because the situation in dispute is governed by general rules of conduct adopted by the legislature, because it only requires that the executive put into force the existing norm or because it is necessary that the judiciary adjudicate a dispute as to the content or scope of the norm. The exercise of each of these functions is, in turn, limited by respect for individual rights of the members of the community.

This describes a legal-political order operating normally. Suppose, however, that there is a problem whose solution cannot be achieved under the normal distribution of powers or being the case individual rights must be respected. For purposes of this part of the discussion and in order to understand the main points of discussion, assume that the problem in question has the character of a crisis, an emergency that jeopardizes the very existence of the state or the political community. Consider the case of an invasion by a foreign enemy or a natural disaster like the earthquake in Haiti in January 2010.

To this scenario then add that the only way the crisis can be overcome is through measures that would not be permissible under the existing legal order. This would be so because they entail acting contrary to the scheme of the division of powers, as would be recognizing that the executive branch can legislate, or because they require limiting constitutional rights of individuals, as in the case of preventive detention.

From the point of view of the normative system, the above situation could have a clear answer: none of the alternatives really exist because the legal order does not support actions contrary to it. However, when we are dealing with critical circumstances that endangers the very existence of the legal order or the political community, it is suggested that the situation of necessity would force the need to act, even where this involves a transgression of the established legal order. We must then ask: Is this a reality that goes beyond the legal and operates as a necessary act, or can this type of alternative exist within the legal order itself? [William Vázquez Irizarry “Exception and Necessity”]

***

1.8. In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. [Page 23]

***

2.1 [The] articulation between state of exception and juridical order ... is a paradoxical articulation, for what must be inscribed within the law is something that is essentially exterior to it, that is, nothing less than the suspension of the juridical order itself. [Page 33]

The purpose of the book [sadly, not of this chapter] is to lift the veil covering this ambiguous zone between law and politics, the juridical order and life.

1.8. “In any case, to understand the problem of the state of exception, one must first correctly determine its localization (or illocalization). As we will see, the conflict over the state of exception presents itself essentially as a dispute over its proper locus.” [Page 24]


1.2. This purpose is made urgent because “… the voluntary creation of a permanent state of emergency … has become one of the essential practices of contemporary states, including so-called democratic ones. … This transformation of a provisional and exceptional measure into a technique of government threatens radically to alter — in fact, has already palpably altered — the structure and meaning of the traditional distinction between constitutional forms”. 

1.3. Futher, the state of exception has far-reaching biopolitical consequences.

For Agamben, such suspension of the law is pivotal in that it directly affects people’s lives, not as subjects of politics or citizens, but as human beings as such. [David Giordanengo “The State of Exception”]

Consider the USA Patriot Act which allowed the attorney general to take into custody any alien suspected of endangering the national security of the US and the subsequent “military order [added: relevant section is Sec 7 (b)]” which turned that alien into a “legally unnamable and unclassifiable being” since any individual so captured had no “privilege[] to seek any remedy”. S/he would no longer be a person nor even a prisoner but merely a “detainee” whose identity as a person is erased and whose existence is subject to a pure de facto rule completely removed from the law.


1.4. If, as has been suggested, terminology is the properly poetic moment of thought, then terminological choices can never be neutral. In this sense, the choice of the term state of exception implies a position taken on both the nature of the phenomenon that we seek to investigate and the logic most suitable for understanding it.


1.5. The debate on the theory of the state of exception started in during the 1930s and 40s in the context of the collapse of Europe’s democracies. The debate was centered around the concept of constitutional dictatorship (see below). What emerges from the debate is the realisation that the state of exception “increasingly appears as a technique of government rather than an exceptional measure, but it also lets its own nature as the constitutive paradigm of the juridical order come to light”.

Herbert Tingsten [Les pleins pouvoirs (1934)] examined the technical problem associated with the delegation of full powers to the executive. 

The expression full powers (pleins pouvoirs), which is sometimes used to characterize [added: but does not coincide with] the state of exception, refers to the expansion of the powers of the government, and in particular the conferral on the executive of the power to issue decrees having the force of law. [Page 5]

The problem simply is that in conferring the executive full powers in order to deal with exceptional circumstances, the legislative power of the parliament is superseded. Tingsten inventories a large number of case histories and moves to the realisation that if this supersession becomes “systematic and regular”, democracy will be liquidated. And in fact, such supersession has become common practice!

***

Carl J. Friedrich [Constitutional Government and Democracy (1941)] distinguished between constitutional dictatorship and unconstitutional dictatorship. This is analogous to Carl Schmitt’s distinction between commissarial dictatorship and sovereign dictatorship.

There [added: in the book, Dictatorship: From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle (1921)] he [Carl Schmitt] traced the history of dictatorship and concluded that it can be categorized into two forms: commissarial and sovereign. A sovereign dictatorship utilizes a crisis to abrogate the existing constitution in order to bring about a “condition whereby a constitution [that the sovereign dictator] considers to be a true constitution will become possible,” whereas a commissarial dictatorship endeavors to restore order so that the existing constitution can be revived and allowed to function normally. [George Schwab, Introduction to Political Ideology, p. xix]

The former seeks to safeguard the constitutional order while the latter, to overthrow it. The problem is that the former invariably transitions into the latter with the result was that the very order that the former sought to protect is destroyed by the latter. Consider the transition that happened in Germany from the Weimar Republic to the Third Reich. How to define or overcome this transition? 

Nazi Germany, in fact, did not operate in violation of the Weimar Constitution, but within the framework of its articles that allowed the government to suspend individual rights in case of necessity. Thus, “from a juridical perspective, the entire Third Reich can be considered a state of exception that lasted twelve years” [David Giordanengo “The State of Exception”]

***

Clinton R. Rossiter [Constitutional Dictatorship (1948)] tries to justify constitutional dictatorship. His hypothesis is that because democratic regimes function under normal circumstances, in times of crises, that democratic arrangement must be suspended precisely in order to restore normal conditions. But in trying to demonstrate the necessity of constitutional dictatorship, Rossiter runs into contradictions. It is impossible to neither indicate a substantial difference between constitutional and unconstitutional dictatorship nor demonstrate that the transition from the former to the latter can be ruled out. This impossibility is because the difference between the two is not of nature but of degree. Hence, it is difficult the flesh out a distinct boundary separating the two.


1.6. In the legal traditions of the West, the state of exception finds itself located in orders that either regulate it through the constitution or a law (France, Germany) or leave it unregulated (Italy, England, Switzerland and the US).

Scholarship is also divided similarly among those who favour constitutional or legislative provision for the state of exception and those who “criticize the pretense of regulating by law what by definition cannot be put in norms”.

1.7. “[W]hat is ultimately at issue is the question of the juridical significance of a sphere of action that is in itself extrajuridical. Two theses are at odds here: One asserts that law must coincide with the norm, and the other holds that the sphere of law exceeds the norm. But in the last analysis, the two positions agree in ruling out the existence of a sphere of human action that is entirely removed from law.”


(This really is the meat of the chapter.)

1.8. Those who contend that the state of exception should be included within the sphere of the juridical order understand the state of exception either as a part of positive law grounded on the understanding of necessity as a source of law or as the state’s subjective right to self preservation. Those who contend otherwise view the state of exception and the necessity that grounds it as political, external, extrajudicial, or de facto elements.

However, this opposition (inside/outside, judicial/extrajudicial, juridical/political) appears insufficient. Because “[i]f the state of exception’s characteristic property is a (total or partial) suspension of the juridical order, how can such a suspension still be contained within it?” And “if the state of exception is instead only a de facto situation, and is as such unrelated or contrary to law, how is it possible for the order to contain a lacuna precisely where the decisive situation is concerned?”

In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. The suspension of the norm does not mean its abolition, and the zone of anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order. … In any case, to understand the problem of the state of exception, one must first correctly determine its localization (or illocalization). As we will see, the conflict over the state of exception presents itself essentially as a dispute over its proper locus.”


1.9. The concept of necessity is posited as the foundation of the state of exception. The adage necessitas legem non habet or ‘necessity has no law’ can be interpreted to mean either ‘necessity does not recognise any law’ or ‘necessity creates its own law’. Whichever the interpretation, an analysis of the concept of necessity should resolve questions concerning the legitimacy of the state of exception.

The theory of necessity in Gratian’s Decretum and Aquinas’ Summa Theologica is that of a theory of the exception where a particular case is released from the obligation to observe the law. The issue is not that of the status of the juridical order as such.

“It is preferable not to sing or listen to the mass than to celebrate it in places where it should not be celebrated, unless it happens because of a supreme necessity, for necessity has no law” [Gratian]

“If there is, however, a sudden danger, regarding which there is no time for recourse to a higher authority, the very necessity carries a dispensation with it, for necessity is notsubject to the law.” [Aquinas]

1.10. With the moderns, the state of necessity becomes a part of the juridical order. The principle whereby necessity leads to the suspension of law is reversed and necessity becomes the “ultimate ground and very source” of law.

Santi Romano, for instance, asserts that necessity is the true, proper, first and originary source of law. This source lies prior to or beyond legislation but within the juridical order. There is a distinction between the juridical order understood as “law in the abstract, or the entire sphere of law” and the law which refers to “the specific body of rules that a community or state considers binding”. The state of exception then is a perfectly juridical  (within the juridical order) even if illegal (outside of the law) measure realised in the production of new norms out of necessity. 

Thus, “the status necessitatis [state of necessity] appears as … a threshold where fact and law seem to become undecidable. If it has been effectively said that in the state of exception fact is converted into law, the opposite is also true, that is, that an inverse movement also acts in the state of exception, by which law is suspended and obliterated in fact. The essential point, in any case, is that a threshold of undecidability is produced at which factum and ius fade into each other.” 

The most extreme aporia of the theory of the state of necessity against which the theory runs aground is that, in the final analysis, “necessity is a subjective judgment, and that obviously the only circumstances that are necessary and objective are those that are declared to be so”.


References

  1. Agamben, Giorgio. 2005. The State of Exception. Translated by Kevin Attell. Chicago: The University of Chicago Press.
  2. Giordanengo, Davide. 2016. “The State of Exception.” E-International Relations.
    http://www.e-ir.info/2016/06/21/the-state-of-exception/
  3. Gullì, Bruno. 2007. “The Ontology and Politics of Exception.” In Giorgio Agamben: Sovereignty and Life, 219–42. Stanford, CA: Stanford University Press.
  4. ———. 2009. “The Sovereign Exception: Notes on Schmitt’s Word That Sovereign Is He Who Decides on the Exception.” Glossator 1: 23–30.
    https://solutioperfecta.files.wordpress.com/2011/10/gulli-the-sovereign-exception-8×10.pdf
  5. Irizarry, William Vázquez. 2010. “Exception and Necessity: The Possibility of a General Theory of Emergency.” [Originally published as “Excepción y necesidad: la posibilidad de una teoría general de la emergencia” in SELA 2010: Inseguridad, Democracia y Derecho 274 (2010)]
    https://solutioperfecta.files.wordpress.com/2011/10/gulli-the-sovereign-exception-8×10.pdf
  6. Schwab, George. 1985. “Introduction.” In Political Theology: Four Chapters on the Theory of Sovereignty, xi–xxvi. Cambridge, Mass.: MIT Press.

 

The Constitution in the National Surveillance State by Jack M. Balkin — A Summary


Balkin, Jack M., “The Constitution in the National Surveillance State” (2008). Faculty Scholarship Series. Paper 225.
http://digitalcommons.law.yale.edu/fss_papers/225


This article discusses the specific case of the United States of America. However, in the summary, only the conceptual parts have been retained and the specificities have been dropped.


“The Information State is a state that tries to identify and solve problems of governance through the collection, collation, analysis, and production of information.”

The National Surveillance State (hereafeter NSS) is a “special case of the Information state which aims to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services”.

The existence of such a state is a reality. It is only a question of what sort that state will be — whether it will stand for individual dignity and the rule of law or against them.

This state grows naturally out of the Welfare State and the National Security State. The former governs domestic affairs and the latter, foreign policy. The former creates demand for data processing technologies for identification of persons and subsequent delivery of services. The latter also creates the need for intelligence collection and data analysis. Crucially, it funds the development of appropriate and requisite technologies for surveillance.

This state is now permanent. It collects data not just to prevent terrorist activities but to prevent ordinary crimes and also to provide welfare services. Private players play an important role too. The technologies available are mobilised by public agencies and private enterprises alike and they work in concert to make surveillance possible.

The emergence of digital technologies has created a new set of possibilities and challenges for the NSS. For one it enables governments to identify and head off threats in advance. However, it also leaves them vulnerable to attacks from anonymous hackers who can leverage the very same capabilities.


The major conceptual shift is visible in law enforcement. The old model of apprehension and prosecution is supplemented by prediction and prevention. This new form of enforcement which relies on massive, fast and reliable collection, storage and analysis of data could not have been possible without digital technologies.

Governance in the National Surveillance State is increasingly statistically oriented, ex ante and preventative, rather than focused on deterrence and ex post prosecution of individual wrongdoing.

Now, the NSS seeks and collects any and all information — electronic as well as biometric.

In the National Surveillance State, bodies are not simply objects of governance; they are rich sources of information that governments can mine through a multitude of different technologies and techniques.

Michel Foucault used Jeremy Bentham’s idea of the Panopticon — a prison where the prisoners could be constantly watched though they would not know exactly when — to drive home the point that modern societies are obsessed with watching and measuring people in order to control them.

The model of the Panopticon appears inadequate now. Today, it is not so much the watching as the processing of and drawing connections between data. It is the collection of information about innocent, normal behaviour and drawing powerful inferences from them. Also, a person no longer has to be under surveillance directly as surprising amounts of information can be obtained via the people she interacts with.

Much privacy depends on forgetting. But with the declining costs of storage, in the NSS, amnesia has pretty much become a thing of the past.


[Extracts]

The National Surveillance State poses three major dangers for our freedom.

  1. Because the National Surveillance State emphasizes ex ante prevention rather than ex post apprehension and prosecution, the first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights.
  2. The second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services.
  3. Private power and public-private cooperation pose a third danger. Because the Constitution does not reach private parties, government has increasing incentives to rely on private enterprise to collect and generate information for it. … As  computing power increases and storage costs decline, companies will seek to know more and more about their customers and sell this valuable information to other companies and to the government.

The problem now is that of ensuring that the NSS does not trample on individual rights and constitutional government. We can begin by distinguishing between an authoritarian information states and a democratic information states. The former collect as much information as possible and keep that information secret —  they are information gluttons and information misers. There is no accountability. The latter on the other hand collect and collate only the information required and are willing to share the information so collected with the public — they are information gourmets and information philanthropists.

As it stands today, the NSS behaves more like an authoritarian information state. Its activities (as well as those of allied private parties) in the interest of national security are largely exempt from scrutiny. Guaranteeing constitutional freedoms in has become an issue of urttent importance. Solutions can be legislative, administrative and technological.

Legislation should restrict the kinds of data governments may collect, collate, and use against people as well as institute government “amnesia”; create a code of conduct for private agencies that engage in data collection; and create oversight mechanisms for executive bureaucracies.

Legislative oversight of executive should be supplemented by judicial oversight through a system of “prior disclosure and explanation and subsequent regular reporting and minimization” as well as internal oversight within the executive by institutional structures — perhaps, a  cadre of informational ombudsmen — that require the executive to police itself and make regular reports about its conduct.

Yet an independent judiciary plays an important role in making sure that zealous officials do not overreach. If the executive seeks greater efficiency, this requires a corresponding duty of greater disclosure before the fact and reporting after the fact to determine whether its surveillance programs are targeting the right people or are being abused.

Finally, technological oversight should be instituted by constructing surveillance architectures so that government surveillance is regularly recorded and available for audit by ombudsmen and executive branch inspectors.