In US public discourse, Finlandization is generally seen as a form of humiliating appeasement, and something to be avoided at even a very high cost. (Strange, then, that these same westerners have consistently been urging the Palestinians to accept a deal from Israel that gives them terms considerably less favorable than what Finland won from Moscow?)

Read the comments as well.

Statements of the the obvious
And another one, less obvious

And we should not kid ourselves that we will find Democratic allies in Congress or the Obama campaign that are going to argue that our policy has been all wrong all along. That will never happen. If this conflict becomes a matter of debate in the presidential campaign, it will not be over the wisdom of the overall policy. Obama would be abandoned by the foreign policy Establishment in a New York Minute.*

Reading around more, I'm now not so sure that's true. There's a real fight going on. Here are Anatol Lieven and Scott Horton. But Henry Farrell is a very specific kind of idiot.

"But this also implies that Steve’s suggestion – that Western powers should have traded off Kosovan independence for recognition of Abkhazia and South Ossetia – would have been an even worse option. It would have been tantamount to an effective recognition of spheres of influence,"

Farrell is incapable of seeing anything through an imagination other than his own. He has the best intentions -I won't argue- but he also assumes his own impartiality. And he seems unable to tell the difference between his moral right to state as a private citizen that there should be no spheres of influence and his responsibility in arguments concerning the behavior of state actors who act on the knowledge that they exist. Moral seriousness is not moral responsibility. Manners are not actions. The US supports democracy when it's seen to suit our leaders' definition of American interests but otherwise is happy not to. Pakistan is only today's example.

All this ties into my annoyed but sloppy comment here.
Craftsmanship manifests self-awareness. Experience is private, but the communication of experience through a common medium -the definition of craft- re-situates us and returns us to the public world.
Art is less expression than description:

"Try writing a dialogue where the implications of each speaker’s words undermine the stated intent... try writing a dialogue [for two] that’s also a quartet."

Attention to craft can reverse-engineer an understanding of the complexities of experience, can make evident how much we craft our relations otherwise without thinking, how much we construct patterns in response to pattern, as reflex. Again this returns to the difference, and tension, between invention and observation. I almost want to say that con men are empiricists and marks are unfailingly rationalist.
---

* Cognitive dissonance two days later

Maureen Dowd doesn't root for Democrats. She uses her column to mock Democrats, drive wedges between Democrats, and to reinforce negative stereotypes about Democrats.

I guess the point is not that she's always wrong but that she's insulting and frivolous.

"I don’t think in the 5 years I’ve been reading this page, I’ve read one description of a logically and emotionally complex situation that didn’t rely on generalizations, boilerplate and cheap sentiment."

Here's one example; and another dug up by accident.

notes old wine in new bottles

Still waiting for someone to burn the flag of the secular Israeli state.
Still waiting for Blubba to take a stand on the Gaza and the occupied territories.

Tension About Religion and Class in Turkey. Which side are you on Bubba? John? Read the link for once before responding. Both of you.

The issue as I said above isn't religion but the metaphysical valuation of inanimate objects as anything other than themselves. Myers is a modernist and a Platonist. "A brick is a brick is a brick." as someone once said. "Whaddaya mean Love is a rose? Love is an emotion. A rose is a goddamn plant!!"
It's no longer an argument over delusions, but over whether its possible for a secularist to be delusional. It is, obviously.

There is no god. God is a McGuffin. [Look that one up. Learn something.] God, and the Host, are synecdoches for community.
Weinberg, a much more important figure in the movement to which Myers belongs, the self-described "Brights," is a self described Platonist and secularist. I have no idea how it's even possible to be both. I linked to his book Facing Up: Science and it's Cultural Adversaries and its Chapter 15. Zionism and Its Adversaries This is the Platonism and reason of a Nobel Prize winner. Racism.
I will not defend the politics of Platonism. That link is to a screed by another "Bight" quite famous in his field.

We exist as objects in the world of facts. We live as creatures in a world of perceptions. It's a mistake to pretend that as creatures we have unshaded access to the world of facts. Desire for unknown facts is not reason but desire. Falling in love with rocks and insects is not more valuable to our society than the articulation of the ambiguities of perception as they relate to justice and law in a community. The rule of law is not the rule of reason. In the rule of reason there are no laws. The doctrine of Stare Decisis has no place in science but is central to our political order.

It is always a mistake to assume. As I wrote on an old post at Myers' page

Scientists do tend to be optimists. But they also tend to use words like 'truth.' as in 'ultimate truth' but truth is a term of metaphysics, and science is not concerned with truth but FACTS; facts which are mundane until someone has the desire to discover them and then revert to it after the post coital glow of discovery has faded.

You defend assumption and desire. And in doing so you act to defend the crimes of those who share your assumptions.

Colin McGinn "Philosopher" and Bright

I myself see a close link between democracy as a dogma and the idea that everyone's opinion is as good as anyone else's: that is, between equality in respect of voting power and forms of relativism about truth. For if people's opinions do not have equal value, how can we justify giving their votes equal power?

And again

Well, if truth, reason, virtue, etc are not objective qualities that people exemplify to varying degrees, but are rather relative to each person, we have a way out: everyone is as smart and good as anyone else to himself. Then democracy rests on no lie, since everyone really is cognitively and morally equal. Relativism steps in to save democracy from its noble lie. Thus relativism finds a foothold. But relativism is rubbish; so where does that leave democracy?

Myers is small town pedant who doesn't even know what he's defending.

note taking

Brian Leiter, Simon Blackburn, Richard Posner, Colin McGinn, the “New Atheists, ” all share Chomsky’s rationalism and his idealism. All more and more express contempt for democracy and the “illiterate” “irrational” majority. Chomsky is on record for his contempt for empiricism as a methodology, but empiricism, as a journalist, is what’s made him as famous as he is. Put that list of names above alongside the link to Kos above [Kos the hack political operative]. Perhaps Chomsky’s a good reporter because he thinks it’s just banality, so he shrugs and does his Joe Friday act. It’s a better model for the press then we have now: he doesn’t take himself seriously.
But Chomsky is a defender of democracy because of what he assumes about people and their behavior Those assumptions are ridiculously simple-minded, in fact self-serving, but he sticks with them, while those who share his modernist rationalism have replaced that naive hope with arch cynicism. But he seems oblivious.

Intellectually Chomsky is in a time warp; his idealism concerning humanity as such is as dated as his linguistics, but he’s still a hero to the young. Yet when he’s caught being sloppy or indulgent he never admits it. He tries to argue his way out of anything, even if it would he easier to just own up and move on. It’s the same with his philosophical arguments. His brilliant imagination is also thin and brittle. You can contextualize him, as a post war rationalist, and still value his insights. But you’ll always have to pick and choose what to keep and what to throw away. True with anybody actually. But context, history and ambiguity, empiricism, are not things he takes seriously. However good a reporter he is, his intellectual model as a thinker and a philosopher, and his model of the world, is deeply deeply flawed.

This and the previous [two down] taken from discussion here. Another commenter linked to a post by Markos Moulitsas, "Kos." It's a good one. Very basic stuff, in a good way.

To any readers from Savage Minds, if you want, type McGinn's or Leiter's last name in the search bar above. Otherwise this is just note taking: The same shit, but some good lines:

Language is public. Numbers are impersonal, indeed anti-personal, but are also private.

There's a lot in that one. Definitely a keeper.

Technical disciplines make status definitions relatively simple, and if anything tend to encourage competition to the point that competition becomes a central aspect of the discipline itself. Any culture of technical expertise is a bubble culture and of limited interest to outsiders; but If you seek to generalize from that bubble out into the world, as if it were the world, it becomes what’s called a ghetto culture. But the world is not the lens through which you choose to see it.

Leiter’s academia is a ghetto culture, and he spends as much time discussing gossip and academic bed-hopping as philosophy. But he does not discuss the philosophy of bed-hopping. If he were I’d have more interest.
It’s not status-seeking that annoys me it’s the status-seeking of moralizing priests. McGinn like Leiter claims to be an atheist and a freethinker, but neither come close. McGinn is obviously a product of his experience and of his time, in ways that he will not admit. He’s blind. We’re all products of culture. We’re not all hypocrites.
---

The rule of law is the rule of chosen words in the common language and the rule of argument over their meaning. That argument itself is constitutive of democratic society. Language is public. Numbers are impersonal, indeed anti-personal, but are also private.

“I remember… when we used to sit
In the government yard…
in Zagreb,”

Feh

[Rough. I'll fix it later. I'm sick of this shit.]

As always I return to the same points: the necessity for (and the obvious presence of) divided loyalty among individuals [or "nodes"] and the strange willingness of academic intellectuals to accept self-reported data as long as they're the one's reporting it.

No one network can foster both dynamism and stability, only multiple overlapping networks, constructed among the same points. The only way to avoid recognizing this easily demonstrated fact is if out of little more than ideological bias, you choose to see yourself as undivided, as a unified reasoning mechanism. There is no evidence for this in human history.

The definition of a renaissance is of a moment of dynamic tension between individuals and community. It's not freedom that produces such moments. but the discovery of freedom by those still bound by obligation. The dynamism of social democracy is the dynamism of self-interest held in check by community. I've been reading recently that Descartes is associated with the birth of the subject. The only people who could argue this are those ignorant of both Michelangelo and Shakespeare. I myself would say Masaccio, whom Michelangelo revered. Self-awareness begins not with a fallacious clarity but with an acknowledgment of anxiety and doubt.

Why has no one ever responded to my comments over these past few years about my old landlady and our neighbors who refused to charge market rent? There has to be a way to put this data [and it is data!] into an economic model. Why does DeLong throw up his hands in frustration at the existence of the Scandinavian model? The answer is that economists like DeLong and you can't allow for the presence of competing imperatives in the same body: people must be either selfish or selfless, they must make a choice! But they never do. The genius of European social and cultural life is not idealism (far from it) but the pressures that designate money and wealth as vulgar, that keep the fact of it a little below the surface. A community of entirely and openly self-interested monads will fail. So a statement that "all people are self-interested" means nothing, unless it is tied to a further statement "all people are bound by obligation."

Another study someone should make: Compare Google to Apple. Google deals in information and money and in the the esthetic of the abstract and intangible. [On money and invisibility I owe a debt to my old roommate. I'm one of the two dedicatees for that paper so I'm returning the kindness.]

Apple is preoccupied not only with abstraction but with the material presence of it's products, not only with conceptual but physical design. It's an example of a boutique capitalism that's also as a result self-limiting. The only way for Apple to go beyond it's chosen niche would be for it to be joined under a conglomerate cf. Moet Hennessy Louis Vuitton.
Steve Jobs will never be as rich as Bill Gates and Apple will never be as malign a force as Microsoft, or this site's chosen idol, Google. You prefer the latter because unlike Microsoft, it's a competent organization, but if anything that makes it more dangerous. Competent hegemons always are, yes?

Again and again: The genius of our justice system is not in complex networks but in the adversarial relations of two: the prosecutorial network and the network of the defense attorneys. The genius of consciousness is not in one complex system but in the overlaying of neural networks of computation with those of conditioned response that compete and contradict.
It doesn't matter how complex your system is. If you're only building one you're wasting your time.

This is still a provincial country. And It's not that anti-intellectualism is so prevalent but that American political intellectualism is seen as antidemocratic, not only by those who distrust it but in fact by those who advocate it. Intellectualism and it's opposite are equally individualist and atomistic in origin: "I can speak for others" vs. "No one can speak for me." Communities are founded out of necessity or fear, but thinkers dream of "freedom." It's the dilemma of America that individualism and democracy are in conflict.
Cultural intellectualism is something else: apolitical, anti-political, expatriate, or sincerely democratically indulgent. But I know of no other country where the class of political thinkers -or of those who want to consider themselves in that role, left and right- are so incapable of seeing themselves through others' eyes, all while being so urgently, arrogantly, indulgently, sincere.

It's not only about idiots like David Brooks, but bright men like DeLong and Krugman, Josh Marshall and Robert Reich; about worried Zionists who think that a willingness to talk about Palestinians is the same as a willingness to talk with them, and then while refusing to admit the original error, are willing to talk to them without seeing the need to take them seriously. The same process holds for the history of race, gender, and sexual orientation. Over time people acclimate, and rationalize in defense of whatever assumptions they may now have, but they themselves were never wrong and of course they are not now. For an American who takes himself seriously the observation that his understanding may be incomplete is like an accusation of mortal sin.
Will American liberals ever understand that they're mocked for their hypocrisy as much by European Social Democrats as by conservatives in their own country? Will they ever realize that its not the contradictions that damn them but their inability to see that they exist?

From comments, re-written. Realism, or any other assumption or generalization tout court fosters passivity. Our academy more and more teaches generalizations -names/terms- and the practical manipulation of those terms -instrumentalism- but not the appreciation of specific events and circumstances. Balkin is aware of this, intuitively and intellectually, but he's too lawyerly and deferential to the process to see outside his role.

"That President will want more authority to engage in surveillance, and he'll be delighted for Congress to give it to him officially."

That statement mirrors the logic and modeling by academics of social and economic self-interest. But since it goes so often side by side these days with calls for responsible and serious journalism and the defense of reason, which I can only imagine is meant as disinterested reason the cognitive dissonance gets to be annoying. Is reason the acceptance of simple self-interest or the promulgation of the academic ideals of collaboration?

I've defended for the moral logic of vulgar political reportage not because I don't trust anyone to ever have the country's best interest at heart, but because I trust vulgarians more than self-important priests to know when a line has been crossed. It was a gossip columnist not a political reporter who was overheard leaving a club full of republican partyers at the convention in NY saying in disgust that they were fascists.
Jack Balkin hasn't spent his life trying to get rich, and prestige can be pleasurable without being primary. Publicly refusing to judge the actions of others tends to reinforce their logic, while screaming in anger communicates nothing beyond anger. There's always a line between awareness and indifference. Being able simultaneously to be engaged and disinterested is an art more than a science. And it's this art, the ability to negotiate ambiguity on one's own, that out academy no longer prizes.

Representative democracy is not giving the people what they want. It's being willing to join or to follow until your individual conscience says: enough. David Davis, a British MP, and a Tory, resigned his seat last week, in protest against the 42 day rule, forcing an election he may well lose. If his "self-interest" is the issue then he resigned in error. If his self interest is tied to his self-respect as a British citizen, as a member of a community, he made a rational choice. Dictatorship is telling the people what they want. The responsibility of citizens and of citizen representatives in republican government is the responsibility to refuse when you think it necessary [I'd written "to know when to choose" which is impossible- there is no one answer] to act against your individual conscience. That's the definition of the divided loyalty that is at the center of democratic culture. There's no way to avoid the ambiguities. To respond with objective passivity concerning Obama's response is shameful.
---

It's a soldier's job to follow orders and a lawyer's job to make lemonade from lemons. Citizens have a more complex responsibility: and lawyers and soldiers are also citizens. The theory of rational self-interest ignores such ambiguity by saying that such divided loyalty does not exist. That's simply not true.

As'ad AbuKhalil


and...


Sinan Antoon [not Charlie Rose] or...



Josh Marshall and Matthew Yglesias.

Tell me it's a hard choice.



Just to make it harder I'll add in Henry Farrell and Dan Drezner.

Watch them all as performance. It's not that Marshall, Farrell et al. are unaware of being on stage, self-consciousness is the baseline. But for all of them self-consciousness is connected to the fact that they're posing for and with their friends - literally "narrowcasting" their opinions to a small community- and the poses and the friendships are more important than the issues being discussed. They may as well be apes picking lice out of each others' fur. But unaware that social roles are constitutive -for them as well as others- they imagine themselves very serious people. Turn the sound down and watch. Then compare any of them to Antoon and AbuKhalil.

We pay lawyers to be biased. A self-important press is not an engaged one. Claims to objectivity become the rhetoric of narcissism.

"And for the record (don't post this), Yglesias as an individual has a great, self-aware sense of humor
and is much more starkly honest (if also unapologetic) about his own elitism
than most liberals. Take him out for a beer and I think you'd find that."

And Marshall and Yglesias started out pro-war.

Shadow Home Secretary David Davis

The name of my constituency is Haltemprice and Howden. The word Haltemprice is derived from the motto of a medieval priory, and in Old French it means "Noble Endeavour".
I had always viewed membership of this House as a noble endeavour, not least because we and our forebears have for centuries fiercely defended the fundamental freedoms of our citizens. Or we did, up until yesterday.
Up until yesterday, I took the view that what we did in the House of Commons representing our constituents was a noble endeavour because with centuries or forebears we defended the freedoms of the British people. Well we did up until yesterday.
This Sunday is the anniversary of Magna Carta - the document that guarantees that most fundamental of British freedoms - Habeus Corpus.
The right not to be imprisoned by the state without charge or reason. Yesterday this house decided to allow the state to lock up potentially innocent British citizens for up to six weeks without charge.
Now the counter terrorism bill will in all probability be rejected by the House of Lords very firmly. After all, what should they be there for if not to defend Magna Carta.
But because the impetus behind this is essentially political - not security - the government will be tempted to use the Parliament Act to over-rule the Lords. It has no democratic mandate to do this since 42 days was not in its manifesto.
Its legal basis is uncertain to say the least. But purely for political reasons, this government's going to do that. And because the generic security arguments relied on will never go away - technology, development and complexity and so on, we'll next see 56 days, 70 days, 90 days.
But in truth, 42 days is just one - perhaps the most salient example - of the insidious, surreptitious and relentless erosion of fundamental British freedoms.
And we will have shortly, the most intrusive identity card system in the world.
A CCTV camera for every 14 citiziens, a DNA database bigger than any dictatorship has, with 1000s of innocent children and a million innocent citizens on it.
We have witnessed an assault on jury trials - that balwark against bad law and its arbitrary use by the state. Short cuts with our justice system that make our system neither firm not fair.
And the creation of a database state opening up our private lives to the prying eyes of official snoopers and exposing our personal data to careless civil servants and criminal hackers.
The state has security powers to clamp down on peaceful protest and so-called hate laws that stifle legitimate debate - while those who incite violence get off Scot free.
This cannot go on, it must be stopped. And for that reason, I feel that today it's incumbent on me to take a stand.
I will be resigning my membership of the House and I intend to force a by-election in Haltemprice and Howden.
Now I'll not fight it on the government's general record - there's no point repeating Crewe and Nantwich. I won't fight it on my personal record. I am just a piece in this great chess game.
I will fight it, I will argue this by-election, against the slow strangulation of fundamental British freedoms by this government.
Now, that may mean I've made my last speech to the House - it's possible. And of course that would be a matter of deep regret to me. But at least my electorate, and the nation as a whole, would have had the opportunity to debate and consider one of the most fundamental issues of our day - the ever-intrusive power of the state into our lives, the loss of privacy, the loss of freedom and the steady attrition undermining the rule of law.
And if they do send me back here it will be with a single, simple message: that the monstrosity of a law that we passed yesterday will not stand.

Ambiguity applies also to the contrast between the revolutionary language of the students, which was impregnated with Marxist rhetoric and nostalgia for the Paris Commune and the Bolshevik revolution, and the content of the movement. You could say that in 1968 we “spoke Marxist,” just as you say someone lisps or speaks through his nose, because at the university it was the dominant language. But it was to say things that weren’t Marxist at all.

Perhaps more than an ambiguity, it was an irony of history. The real legacy of May ’68, as we see in France today, is individualism, the rejection of civic sense and ideology, the rehabilitation of the idea that personal and financial success is a worthy pursuit — in short, a revival of capitalism. To borrow an expression of Lenin’s, we were useful idiots. Indeed, the uprising was more a counterrevolution than a revolution.

...the French have ended up convincing themselves that May ’68 was a sort of Parisian exception, even though it was part of a worldwide effervescence. Comparable uprisings took place in Japan, Latin America, Germany and Britain. Today, we mention those foreign examples only in passing, without making them part of our collective memory. For us, May ’68 remains a French phenomenon.

Notice what country is missing from that list? Except what happened here was not a revival of capitalism, but the development of hyper-capitalism. The 60's put the process of development into overdrive.
---

Continuing from my recent comments below and at Balkinization:

One of the effects of various New Deal and civil rights legislation was the thinning of the wall separating public and private life and the increasing dominance of a single and public measure of man: the measure of economics. This is where social and free market liberalism side against the "conservative" socialist left and the old right.
None of this had to be articulated or even understood at the time for it to be seen by us in retrospect as obvious.
We could ask even more bluntly if David Addington's understanding of the Constitutional separation of powers is wrong in the sense that one plus one doesn't equal three, or if mathematics and physics allow for Stare Decisis.

Again the question is not whether the constitution is "living" any more than it is whether language is current. We don't live in the past and we shouldn't pretend to. But we should look to the past to understand the present. Putting history before theory would seem the wise choice.

"The question before us is how we choose to define ourselves. The rules of conduct on the chessboard, the tennis court or the courtroom are a means to focus our attention. The game is always played by the living... Arguments either for or against a "dead hand," those of Libertarians or reactionary Catholics, miss the point."

Note taking, from my comments on Can Living Constitutionalism be Defended?

Has language ever been static?
Has there ever been a doctrine or document the meaning of which has remained unchanged over time?
Has the Bible ever been static? Has the Catholic Church ever been static. Can we hear and understand Mozart as he was in his lifetime? Bach? Shakespeare? The list goes on, and on, and on. The answer to all such examples is no. Run down every attempt in history to stop time, see what you end up with.
"Can Living Constitutionalism be Defended?"
Better, can the fact of it be denied?
It doesn't matter one way or the other what you want. First ask what is.
Can the meaning of a document become so twisted by rationalization that it becomes a parody of itself? Yes. Can debate become shallow? Yes. But the imposition of absolute meanings does not defend against intellectual sloppiness, it institutionalizes it.
This debate is stupid.
---

"That's the fundamental dishonesty that lies behind living constitutionalism."

Living constitutionalism is the law of the land in Canada. But you're still talking about law, and I'm talking about language and one is a subcategory of the other. I'm tired of listening to people argue about the idea of law who have no understanding of nor interest in the facts of language.
If you want to argue that the constitution has been broken rather than stretched, go right ahead, but the general logic undergirding your argument as it stands is founded on a falsehood. Theology may have a long history of brilliant arguments based on mistranslations but the mistranslations are still there.
I'll put it another way with another text. Mozart wrote symphonies as notation and editorial comment on paper. Rules: "B flat" "A minor." Comments: "quietly" "slowly" "quickly" "quickly but not frenetically" "fast!" Even seeing notes mathematically people still argue over how to interpret what he wrote. Mathematicians may prize Bach but the same questions apply.

When does a performance of Mozart become something we no longer recognize as Mozart? That's something we fight over and always will. There is no Mozart without argument. There is no Platonic form of his music that we will ever know, just as there is no Platonic form of the constitution. Every argument on such issues is an argument over logic and sensibility, over rules and values. Values are politics, and the debate is a game, argued like two men playing chess or tennis. Chess and tennis have rules too, but rules of conduct, specifically ethical rather than moral ones [no rules pertaining to "truth": no one would argue over the Platonic nature of the rules for chess or basketball.]

The question before us is how we choose to define ourselves. The rules of conduct on the chessboard, the tennis court or the courtroom are a means to focus our attention. The game is always played by the living, in the present. Arguments either for or against a "dead hand," those of Libertarians or reactionary Catholics, miss the point.
The logic of rules and rule following is the same for athletic or intellectual competition: the foundations are man-made. The Constitution is not there [and was not made] as a rule for us to follow but as a means to test ourselves, to be engaged with one another and to define ourselves in the present. Passivity before the constitution is immoral.

"Laws do not make communities, communities make laws."

I'd never put it so simply, but there it is all alone, for now. It's such a simple statement of the obvious, but still, it follows the logic of my point. The idea, law, or catch-phrase comes at the end of the process.
"Laws do not make communities, communities make laws." It's a cliche that no-one's heard of.

“A Freedom House rating of ‘7’ should therefore be a decisive indication that no regime can legitimately sell resources from that country.” (p.25) His examples of countries that score a 7 are: Burma, North Korea, Somalia, and Sudan (on the civil liberties list) and Burma, Equatorial Guinea, North Korea, Sudan, Syria, and Zimbabwe (on the political rights list).”

What’s the statute of limitations for simple theft, as in the case of Empire. Does the law cover the expropriation of land from the native americans? The Balkans? Ireland? Does it cover Palestine?
What the authors of these absurdities fail or refuse to understand is that there is no one definition of justice, there is only the possibility of acceptable shared definitions. Justice systems, like tax systems, only function within systems of representation. Without representation, they’re perceived as tyrannical.

In the discussion of Cambodia and the Vietnamese invasion, the argument against invasion, as bad precedent, is superior in legal terms. The fact that a neighbor went in and overthrew the government is probably for the best. The fact that a country halfway around the world did not see as their obligation, or that others reminded them that it wasn’t, is also for the best.

Laws do not make communities, communities make laws. Liberals and Libertarians replace communities with laws, both fail.

“Justice, like taxation, without representation is tyranny”
“A foolish consistency is the hobgoblin of little minds.”
Liberal and libertarian legal theory claims to be the search for non-foolish consistency, often claiming to be based on it.
That’s both foolish and often criminally self-serving,
This is empirically obvious, but rationalist rationalize.
Nothing stops them. Ever.

Note taking. My comments

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.

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.

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.

In response to Brian Leiter.
Yoo is a legal professional with responsibilities in the public sphere beyond the groves of academe. A professor of structural engineering cannot lose tenure after a bridge collapse but he can lose his right to design bridges, at which point he can be fired. A lawyer like an engineer or a doctor is often not only a scholar, but a licensed practitioner. He can lose his license
Simple.
Leiter wants the benefits of "technical" professionalism but not the risks.