From Crooked Timber

Viel hat von Morgen an,
Seit ein Gespräch wir sind und hören voneinander,
erfahren der Mensch, bald sind wir aber Gesang

Starting from the morning
when we became a conversation, and hear from each other
much have we experienced but soon we shall be song.

Of course, one could try to remain unimpressed by this, and insist that this is, after all, just poetic hyperbole. The idea that song could replace conversation is a Romantic conceit, not something to be taken too seriously. If one is going to take this tack at the point, though, why start by appealing to poetry in the first place?

Poetic hyperbole? Isn't the implication here that soon we shall be dead, and that song, or story, or history - recorded language- will be all that's left?

It would make more sense to frame your argument as being against short term and short sighted “practical” instrumentalism in favor of “instrumentalism for instrumentalism’s sake.”
As I’ve said again and again, instrumentalism as such is what this site is about: science as opposed to culture and the intensive study of externalities, and of what you imagine to be externalities, as opposed to the nurturing of a conscientious, ironic, and humane self-awareness. The Humanities in the Anglo-American world, post Sputnik, have become wannabe sciences. Your argument is an argument for “pure” research.
You put yourselves on this slippery slope a few generations ago (or maybe a few hundred years ago).
---

"What's the function of law?
What's the function of religion?
Looking at it it becomes clear pretty quickly that religion doesn't have much to do with god, but that it is the original form of law. Before you ask how should law should change, ask how it does. How does god change?
Those two questions are the end of fundamentalism.

The dichotomy and our supposed need to choose between religion and technocracy or natural law and positivism, is a choice between one false foundation and another. Technocracy is no more valid a foundation than the Church, and Posner has no more respect for democracy than Scalia. It's amazing how the priesthood finds a way to propagate itself.
Laws are points in an endless debate, that's all. The debate is the foundation.

A response to a comment:

"'religion.... is the original form of law'.
Maybe, but only in a limited rule-giving sense."

But religion whether oral or written is still language, and begets interpretation; and one interpretation begets others, and then debate. The story just supplies the structure. As'ad AbuKhalil put it well in one of his posts on the mess in Lebanon:

"I was also displeased with the closure of Hariri media, as much as I detest them and as much as I believe that they have been engaged in acute sectarian mobilization that is exactly the same as of the propaganda of Al-Qa`idah. I will not enjoy writing in Al-Akhbar and attacking my opponents if they are not on an equal footing..."

Politics needs to be taken as seriously by its practitioners as sports are professional athletes. That's the logic of a courtroom, but trial lawyers understand this more than academics. My problem with legal realism is more than anything that it tries to undermine the game, choosing victory over process. The same is true of law and economics. Their values are assumed and unquestioned. What is public and social by nature is redefined as unsocial or even anti-social. We the people becomes we the elect and the logic of democratic process is sacrificed to the logic of spurious "truth"

I continue to be amazed when I'm reminded how many people see the choices as limited to either faith or technocracy, natural law, or positivism. Perception doesn't begin with naming, to a significant degree it ends with it: ending where/when/as communication begins.

Gaza/Sadr City/Beirut

Syria Comment
As'ad AbuKhalil
Badger
Land and People. Linked by both AA and one of Josh Marshall's flacks, who may not know that the author, Ramy Zurayk also wrote this.

Duncan Black explains the relation of emotional to intellectual complexity to those who think it only applies to reactionary tribalists in Alabama and Tehran.

We're All Hacks
It's important to remember that none of us are above the fray, that we all have hackish tendencies to suppress information which doesn't fit our worldview and privilege information that does. We're more likely to excuse behavior from people we like and exaggerate the ills of people we don't like. I try to fight hackish tendencies especially during this intra-Dem battle, but I don't claim to have superhuman Nonhack powers.

Be grateful for small favors. If he were more intellectually "serious" in the model of political thinkers in this country that paragraph would never have seen the light of day. To be honest, Atrios consistently referred to himself as a hack for the first few years. I always liked him for that.

Gaza, Beirut, and Sadr City.

Badger

As'ad AbuKhalil - The Legacy of Rafiq Hariri: Dahlan Plan for Lebanon.

Jimmy Carter - On Gaza

The world is witnessing a terrible human rights crime in Gaza, where a million and a half human beings are being imprisoned with almost no access to the outside world. An entire population is being brutally punished.

This gross mistreatment of the Palestinians in Gaza was escalated dramatically by Israel, with United States backing, after political candidates representing Hamas won a majority of seats in the Palestinian Authority parliament in 2006. The election was unanimously judged to be honest and fair by all international observers.

Israel and the US refused to accept the right of Palestinians to form a unity government with Hamas and Fatah and now, after internal strife, Hamas alone controls Gaza. Forty-one of the 43 victorious Hamas candidates who lived in the West Bank have been imprisoned by Israel, plus an additional 10 who assumed positions in the short-lived coalition cabinet.

Idea? Ideology? Philosophy? Aesthetic? What or how does this song mean? Is it an argument for rational action? For technocracy? Is it an argument against individualism? If so it's a pretty idiosyncratic argument. Is it fascist, or democratic in origin? In principle?

Kindheit

American Missile strike on Sadr City hospital
More at Gorilla’s Guides

Badger links to AFP

A US air strike damaged a hospital in the Iraqi capital's violent Shiite stronghold of Sadr City on Saturday, injuring 20 people, as American forces claimed to have killed 14 militiamen.

The US military said it carried out the strike in Sadr City, a bastion of anti-American cleric Moqtada al-Sadr, where US troops in separate confrontations killed at least 14 militiamen since Friday.
"I can confirm that we conducted a strike in Sadr City this morning," a US military spokesman told AFP. "The targets were known criminal elements. Battle damage assessment is currently ongoing."
However, witnesses and an AFP reporter at the scene said the main Al-Sadr hospital had been badly damaged and a fleet of ambulances were destroyed.
Just outside the hospital, a shack which appeared to be the target was reduced to a pile of rubble.

The military said it destroyed a "criminal element command and control centre" at approximately 10 am (0700 GMT).
"Intelligence reports indicate the command and control centre was used by criminal elements to plan and coordinate attacks against Iraqi security and coalition forces and innocent Iraqi citizens."
Hospital staff said at least 20 people wounded in the air raid were taken to the same hospital which had its glass windows shattered, and medical and electrical equipment damaged.

Doctors and hospital staff were livid they had been hit.
"They (the Americans) will say it was a weapons cache (they hit)," said the head of Baghdad's health department, Dr Ali Bistan. "But, in fact they want to destroy the infrastructure of the country."
He charged that the attack was aimed at preventing doctors and medicines reaching the hospital which is located inside an area of increased clashes between American troops and militiamen.
The corridors of the hospital were littered with glass splinters, twisted metal and hanging electrical wiring. Partitions in wards had collapsed.
The huge concrete blocks forming a protective wall against explosions had collapsed on parked vehicles, including up to 17 ambulances, disabling the emergency response teams.
Nurse Zahra was recovering from the shock of the attack.
"I was very afraid. I thought I would die. Everyone was scared. They ran in all directions," she told AFP. "Now I am more sad than frightened because hospital facilities have been destroyed."
Hospital guard Alaa Mohamed, 26, was at a side entrance when the bombs exploded. "There were five missiles that exploded outside the parking lot," he said.
An AFP reporter saw three huge craters, each with a diameter of six metres (yards), created by the impact of the explosions. Youngsters climbed on top of the rubble and looked for anyone trapped underneath.
Residents said the shack that appeared to be the main target of the air strike was a transit point for Muslim pilgrims.
The AFP reporter witnessed several US helicopters sweeping above Sadr City amid a steady barrage of gunfire.
The strike came as the US military said it killed at least 14 Shiite fighters since Friday in a series of clashes around Sadr City.
The firefights which began at 7:20 am (0420 GMT) on Friday and have continued sporadically saw US forces use air support and tanks as they clashed with militants in the impoverished district of some two million people.
On Friday, an M1A1 Abrams tanks engaged "criminals" with one round from its main gun after Iraqi army soldiers reported being attacked by small arms fire from a house, the military said.
"Three criminals were killed in the engagements," the military said.
Later Friday, a US warplane also dropped a bomb and killed two others. Nine other militants were killed in other exchanges, some of them early on Saturday.
US forces have been clashing with Shiite militiamen since March 25 in Sadr City. Hundreds of people have since been killed, with followers of Sadr accusing the military of killing civilians.
But US military spokesman Lieutenant Colonel Steven Stover said the militants were using "innocent civilians as shields for their activity."

From the archives:
"Something can be judged a work of it art if its arguments are rendered with an idiosyncratic subtlety beyond what is necessary to communicate its ideas, and which may even oppose them, but which so colors our perceptions that we can not separate the sensibility from the idea without feeling a loss."

I wrote somewhere that art is made by loving something so much you see it honestly or hating something so much you see it in its complexity. Eliot was among other things a philosopher and Marx a novelist.

The subtext of numbers in use (the subtext of an application of number) is in the form of language: extrinsic. The subtext of language in use is in another form of itself. Any use of language engages both. There is no linguistic argument against context -rhetoric and history- that is not self-defeating. The arguments of the self-described "reality based" community are predicated on standard American (now neoliberal) tropes. Self-interest is conflated with reason because the possibility of unreason has been removed from the "equation." A work of art made as such is an engagement in both reason and unreason, of argument and -even contradictory- subtext; a unification, a magnification and negation of opposing forces and arguments.

Invention is not communication.
Art isn't doing something well, it's doing something that communicates well all the reasons you have for doing it.

On Israel's 60th birthday, things to remember:

If I were an Arab leader I would never make terms with Israel. That is natural: we have taken their country. Sure God promised it to us, but what does that matter to them? Our God is not theirs. We come from Israel, but two thousand years ago, and what is that to them? There has been antisemitism, the Nazis, Hitler, Auschwitz, but was that their fault? They only see one thing: we have come here and stolen their country. Why should they accept that?

David Ben Gurion
---

We cannot celebrate the birthday of a state founded on terrorism, massacres and the dispossession of another people from their land. We cannot celebrate the birthday of a state that even now engages in ethnic cleansing, that violates international law, that is inflicting a monstrous collective punishment on the civilian population of Gaza and that continues to deny to Palestinians their human rights and national aspirations.
---

But I can't do it. Whenever I try to mouth these words, a remembered smell fills my nostrils. It is the smell of shit. Across the occupied West Bank, raw untreated sewage is pumped every day out of the Jewish settlements, along large metal pipes, straight onto Palestinian land. From there, it can enter the groundwater and the reservoirs, and become a poison.

Last two links, from As'ad AbuKhalil

Link

What's old is new again, and again, and again.

Blackburn is a philosopher. I'd have thought this was his area of expertise.

Follow the bouncing ball:
Science is the study of facts and philosophy the study of values. Conflating the two in favor of facts, values become assumed. Values assumed, all questions are seen as those of expertise. Terms of measurement are of course assumed. Curiosity is defined by the frame, values by the frame, moral worth by the frame.
Democracy, the multiplicity of values and goals, is undermined.
Blackburn's is the linguistic and philosophical (formalist) corollary to Law and Economics. I'll remind you of the fun I had with Colin McGinn

I had in mind experts of many different types, not all specialists in a particular field. Following Plato, I envisage people trained in all subjects relevant to politics--history, geography, philosophy, psychology, etc. These would be the "philosopher kings" (though not our narrow sense of "philosophy"). They could have advisors in a specific field, if necessary, but they would be broadly educated. These experts would work with some democraticlly elected leaders to make policy--but not merely in an advisory capacity.

---
a response to a response

" 'Science is the study of facts and philosophy the study of values.’ This is a highly eccentric view of philosophy. One way of thinking of philosophy is as the critical examination of common prejudices…”

Critical examination of common prejudices without examining your own can seem logical only if you choose to see such things as external to yourself, as apart and other. The foundational analogy here, and analogy is all it is, is to science. The values behind the deployment of that analogy are not the values claimed by those who deploy it. If they paid more attention to their own prejudices, looking at the historical parallels, that would be clear even to them. Maybe I should have said ‘Science is the study of facts and philosophy the argument over values.’
That would have been clearer.

The formal analysis of language is seen as equivalent to the formal analysis of numbers. The moral values, the moral argument behind mathematical formalism is the moral argument of Platonism. I won’t argue one way or the other about numbers, but the moral logic of Platonism in language is authoritarian.

---
Update- Oh Jezuz. I read the piece, hilarious. Right, wrong, and everything in between. It works best as intellectual and emotional autobiography but autobiography is autohistory and you know how much I love history. He contradicts his own arguments, with style. He's writing from sensibility, not ideology. My last comment at CT:
"He’s not hiding behind anything: his subjectivism, if not outright irrationalism, is front and center. There’s honesty in that... I’ll happily defend him, just like I defend TS Eliot and Philip Larkin."

Next up: Technocracy and Democracy: Contradiction and the Philosophy of Art. Kraftwerk

Roads to Iraq
Gorilla's Guides
Aqoul
Nur Al-Cubicle

etc.

One more time. notetaking

This whole debate is annoying. Brian Leiter is annoying.
The defense of academic "freedom" better described as academic independence, is that once someone has jumped through enough professional hoops he may not be forced to do so again. Any form of social status is political in one way or another, and tenure is a marker after which someone has a right to think pretty much whatever he wants, no matter how absurd. This is not a defense of idiocy any more than it's a claim that whomever passes the mark is a genius or a light unto the world. What it is is a claim that paying some people to be free of constraint, in their thoughts, results on the whole in a social good. Yoo clearly isn't stupid, but he's not that bright. He's a mediocrity, but a mediocrity who's past the post and has reached safe haven for his ideas in the academy. If he defends the actions of Nazi jurists he's safe, though if he did so earlier he might not have gotten tenure (there's the ambiguity of intellectual life as a subset of social life)

If Yoo behaved as a Nazi lawyer he may be disbarred and perhaps charged. But the decision as to whether he crossed that line is not something for the academy to decide. Yoo is a scholar, but he was a jobbing lawyer: his misconduct, if that's what it was, was a misconduct of tradecraft and his guild and prosecutors should be the ones to investigate. If they find him culpable then the academy can choose to expel him. If you want another example think of William Kunstler defending John Gotti's sleazeball attorney Bruce Cutler. And Kunstler defended him on principle. It's a tricky situation.

What's annoying, indeed pathetic about Lieter's argument is his tone. He defends Cloudkookooland as he always does, as the land of enlightenment, when in fact it is a social construction allowing members of our community the freedom to think as casually and sloppily and self-indulgently as they wish, with the knowledge -the hope- that some of them will actually use that freedom to come up with things that they and we would otherwise miss. Yoo is a mediocrity; most professors are mediocrities. A precious few are not. Academic independence is worth the risks, not only of mediocrity but of fostering doctrines injurious to our way of life. As it is worth the risk that the guilty to go free before an innocent man rots to jail. As it is worth the risk to allow freedom of speech to the bitter. The bitter, the aloof, the lazy and the arrogant may sometimes by right. A historian of all things[!], in a post at Crooked Timber wrote proudly that academic freedom predates freedom of speech, defending it as if the Crown's recognition were a valid defense. The arrogance in this case is undeserved.

Academic free speech is an early example of the fight for broader rights. It preceded open free speech in the past for the same reasons it's been granted now in China, which was noted with some surprise by Ronald Dworkin when when he was invited to speak at a university in in Shanghai. To acknowledge that the Crown saw fit to acquiesce is not a defense of the crown, nor is it a wise choice to use the crown as a defense of the prerogatives of academia. That's little more than a defense of the priesthood. "To the pure all things are pure." A historian shouldn't make such mistakes. But he did. As Leiter does, in his ridiculous, obscene, moralizing tone.
The classic defense of the free market is that its openness, vulgarity and risk act as an astringent, testing and tightening thought what would otherwise risk becoming arid blather. But now that the market has reached the academy it wants to escape its roots. So we have an academy predicated not on the hopes and ambiguities of the humanities and of democracy but on the technocratic logic of reactionary schoolmen.

The defense of Yoo's place in the academy is no more or less than a recognition of human weakness partiality, fallibility and unreason. We stumble and acknowledge it, even allowing ourselves to do so so that we may learn. We are fools and lying about it does no good. The defense of academic freedom is not that non-academics are wrong but that we are all even the experts most likely wrong most of the time. The defense of academic freedom is a humble one, not a lecture by the Aristoi to the Hoi Polloi. I'll end with a quote from Henry Farrell who really, really, really, does not get the fucking point:

“I’ve suggested that academic freedom is a good thing on pragmatic grounds, but also made clear that it fundamentally depends on public willingness to delegate some degree of self-governance to the academy. If the public decides that academic freedom isn’t working out in terms of the goods it provides, then too bad for academic freedom.”

To which one can only add that If the public decides that democracy isn’t working out in terms of the goods it provides, then too bad for democracy. Democracy does not begin with the freedom of the individual but with his willing acceptance of responsibility. That the arguments of the academy are now predicated on the former as opposed even to an analysis of their reciprocal relation, is a misunderstanding of language and history and the function of republican forms of government; a misunderstanding of the nature os society itself. Academic independence says this perversion should be allowed, but its a sad state of affairs.

"The photographs and snapshots are accompanied by remembrances from more than 50 international artists and writers associated with the gallery."

Make that 49 international artists and writers and yours truly. A few pics of me as well along with Pat, Danny, Taka, Christine, Patterson, Ken, Dennis, Christian, Dan Graham, Jeff Wall, Andy Warhol, John Waters, Johnny Depp and Vanessa Paradis. Did I miss anybody?

Many times, many tried,
Simple stories are the best
Keep in mind, the wishful kind,
Don't wanna be like all the rest.

Thanks Dennis.


Thanks Colin.

I thought of rewriting this since it's been removed (by Henry F.) from the thread where I posted it but I'll just add a couple things in brackets.

It's really pretty simple:
A tenured law professor having both shown required competence and kissed enough ass to achieve his status may argue that the officers of the court in Nazi Germany were right to do their jobs as they did because they were following existing law.* However, if that law professor is shown to have acted on that argument as an officer of the Nazi court, he may be put on trial or have the case examined by the bar and being found guilty in either case, even if only of ethical violations, he may be fired from his job. [Leiter replies to a similar hypothetical here] It's a bit formalistic but formalism is important: people in Cloudkookooland can say what they want, but if they come to earth and act on their beliefs they can be judged here, and then not be allowed back in.

I defend this logic, but the contempt of Leiter and others for the Hoi Polloi gets to be annoying. Academic independence serves society by allowing people to think freely even when those thoughts are little more than dreams and fantasies. Academic independence is about the right to risk sounding like an idiot. I defend that right. But when academics begin to sound like priests we have every right to tell them that a little humility is is order.
"Academic freedom predates freedom of speech"
That's a good description but a lousy defense. The fact that that was not obvious to the author, Eric Rauchway, is a problem and a big one.

The banality of self-importance. As I said in another comment on Rauchway's post, academic freedom predated free speech in the past for the same reason it’s predating free speech today in the Peoples Republic of China: it’s a both a pressure vent and a distraction, and technical advancement is important even in most authoritarian regimes. Academic free speech is an early example of the fight for broader rights. To acknowledge that the Crown saw fit to acquiesce is not a defense of the crown, nor is it a wise choice to use the crown as a defense of the prerogatives of academia. A historian shouldn't make such mistakes.

Also it's clear Henry Farrell understand's neither academic freedom nor tenure: "...an institution whose general merits I am somewhat ambiguous about ..."

I’ve suggested that academic freedom is a good thing on pragmatic grounds, but also made clear that it fundamentally depends on public willingness to delegate some degree of self-governance to the academy. If the public decides that academic freedom isn’t working out in terms of the goods it provides, then too bad for academic freedom.

If the public decides that democracy isn’t working out in terms of the goods it provides, then too bad for democracy.
---

*The corollary to this is that if he'd made that argument earlier the odds are he wouldn't have gotten tenure. As Mark Graber pointed out there's a difference between legally arguable and morally correct. I'm sloppy. I was referring to the moral argument. Tenure and academic status generally are tied to both technically and socially acceptable practice.

There's so much that's skewed here it's hard to know where to begin. First off, the academy is not separate from society any more than law is separate from politics, but each is a subset with its own prerogatives. Those serve a function and should be respected, but they're not Platonic absolutes.
In re: John Yoo. Though I seem to be the only one so far to bring this up, a lawyer outside the academy and in public life is a licensed professional. An engineer who builds a bridge that collapses under its own weight will lose his job. Historians and professors of comparative literature, even of jurisprudence, don't run that risk. Street lawyers do.

It would also be good to remember that academic freedom is not freedom of thought, it's freedom of thought for those who've been accepted into a club. To think that this exclusivity is a good idea is not to think it justifies excess self-importance.
"Academic freedom predates free speech."
"After all, even the King..." I wouldn't call that something to be proud of in a democracy.

2 decades ago as a 21 year old I read Gravity's Rainbow and a fragment of it became a touchstone of my intellectual life. It's the parallel description of two acts of self-destruction: the mass suicide of the Herero in Südwest as a last act of refusal and denial of the authority of their masters, and the same act by the Schwarzkommando as the an act of purest nihilism. Preempting claims of what geeks call Godwin's Law, the significance of my memories does not concern Naziism but values and context. Academic freedom historically has been tied to general freedom of thought and to democracy, but now it's linked to institutional privilege and defended with references to monarchy. I support it though preferring to think of it as "academic independence" but I would strongly suggest that academic specialists stop pretending their shit don't stink.

The classic defense of the free market is that its openness and vulgarity act as an astringent, testing and tightening thought what would otherwise risk becoming arid blather. But now that the market has reached the academy it wants to escape its roots. So we have an academy predicated not on the hopes of the humanities and of democracy but on the technocratic logic of reactionary schoolmen. Welcome to the 14th century.

First and foremost Yoo was and is jobbing lawyer. Lets see what his fellow tradesmen say.

DeLong, fundamentalist.
I'm going to pick up Graber's book..

Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

Arguing that Yoo could be subject to disbarment is not assuming that it will happen, only that that is the question that needs to be asked and answered.

What DeLong fails to understand is that the rule of law is not the opposite of the rule of man but only its mediation. Treated as an absolute every methodology becomes brittle and blunt. Here's a good reply.

I find this "debate" really confusing. As far as I can tell, Graber is essentially making an argument about the limits of efforts to use the Constitution as a blackjack against your opponents--something, BTW, that both sides in the sectional conflict did to ultimately murderous effect. Thus he's not really arguing that Dred Scott v. Sanford was "rightly decided" so much as that, in strict constitutional terms, it was as plausibly decided as the alternatives. Brad, on the other hand, *cherishes* his right to use the Constitution as a blackjack against his opponents. None of this has much of anything to do with the actual history. Could the slavery issue have been settled by constitutional means? Brad seems to be saying yes--at least if the Chief Justice in 1857 had been a philospher king named Brad DeLong, to whose judgment about the meaning of words such as "liberty" the fractious polity of the time would have simply deferred. But isn't profound division over the meaning of such words precisely the issue that wound up sending 600,000 soldiers to their deaths? I know nothing about Graber's politics, but his argument is hardly inconsistent with, say, that of a William Lloyd Garrison or a Frederick Douglass when they condemned the US Constitution as fundamentally a slaveholders' document. To attack him as a wingnut for pointing out the skeleton in America's closet--that slavery was so inextricably woven into the fabric of American life and culture as to require no less than a second American revolution--is, to my mind, profoundly ad hominem [I know, this is the blogosphere--ad hominem argumentation is respectable here] and intellectually dishonest. Yes, slavery is immoral, but that didn't make it unconstitutional or unAmerican prior to the Thirteenth Amendment, however hard Lincoln and Company tried to make it such; in fact, as little as it flatters our self-esteem to say so, it was all *too* American, all too rooted in our *real* value system, which prizes mastery over others at least as much as equality. Part of the tragedy/farce of the Civil War is the degree to which both sides played these silly legal-constitutional games; indeed, what's most striking about the Third Tribe, and their Radical allies, was their recognition that slavery could never, in the end, be extirpated in a nice, legal manner. That we continue to pretend that our fundamental law was, somehow but from the very beginning, antislavery has to do less with the actual historical record than with our own self-congratulation as Americans--and, I might add, our continuing obliviousness to the injustices still embedded within our notions of "liberty."

DeLong imagines that systems can be just. But systems are only the means by which people live with one another. And the relations of people to one another and of people to systems must be based on reciprocity. Rationalist fundamentalism is the child of textualist fundamentalism. DeLong's idées fixes represent both generations

But yes if there is to be foundationalism it is better to be based on texts and textualism which allow individuals to think and imagine themselves and their own lives, than on logical mechanism which creates nothing but imperatives, straightjacketing the imagination.