Visions and revisions etc.

The oddest thing to me about the cojoining of academic philosophy and law is that the two are so obviously contradictory. Philosophy attempts to analyze the tension between the twin imperatives of construction and observation, but quite obviously prefers one to the other. But law has both a langue and a parole and it has a parole of the school and another of the courtroom. As in liberal discourse, moreover, where the lower class, or the uneducated, or the unemployed, are objects, one gets the sense in listening to academic legal debate—at least under the labels of Law and Philosophy—that not only the public but lawyers, those who are performers in the courts, stand as inferior before the ideals of the imagination. I would expect a more reciprocal relationship to apply.

It is one of our losses that intellectuals are no longer orators, and that skill with language is looked down upon, or worse, indulged as mere style. Mentioning this brought about the end of my correspondence with Belle, who sees formalism as tragic but inevitable, and acts accordingly, even as her language overpowers her ideas (leave it to me to debate the merits of fatalism with a hooker.)
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One of my accidental presents this year was a CD of an Otto Klemperer St. Matthew Passion from 1962. The sprightly baroque-isms of my more recent British recording always annoyed me, but now I'm faced with this. Is it possible that the lateness of the Klemperer style is manifest in owing too much to the meaning of the text, while the lateness in the style of John Eliot Gardiner is exhibited in his not paying it enough attention? If one is too close to the content, is the other content merely to replicate the form? A question for philosophers of art and language.

Nathan Newman:

I saw the documentary The Fog of War and was fascinated that Robert McNamara referred to himself as a war criminal, NOT in regard to Vietnam, where his self-judgment was somewhat ambiguous, but about his role in World War II. Back then, he was on the statistical team that helped plan the bombings of Japanese cities, which led to the total devastation of most of them and over 300,000 civilian deaths; Hiroshima was in many ways a sideline to the much broader conventional firebombing of their cities.

And McNamara noted his role as war criminal would only have come if the US had lost the war. With US victory, World War II recedes into memory as the "Good War" where the deliberate US mass murder of German and Japanese civilians is obscured.

No links, they're on the left. Go read Juan Cole, and Riverbend (Baghdad Burning.)

I want to add a comment because I've been getting so many hits from Brian Leiter. I hammer away at the same themes, and sometimes while enjoying myself I get sloppy. These new readers are more likely than most to catch me.

It's called "Imperfect" justice for a reason. What's the nature of the imperfection? How can a philosophy founded on imperfection be seen as useful, or profound? The system of adversarial justice is built on nothing more than rules of engagement: it's stage managing as much as anything. On the other hand I would ask: how can a philosophy predicated on perfection be useful? What can be learned from mathematics as philosophy? If we rely on theater tricks to help resolve discussions of guilt or innocence -and life and death- how does mathematics have any more than an ancillary relationship to such discussions? If we're doing nothing more than studying the parlor tricks themselves, is this philosophy or merely technics?

And what do we call those who speak in court, those who convince, who seduce? Shouldn't legal realism mandate courses in rhetoric? In drama studies?

"Ok now... Everybody breathe in... slowly.
Now, exhale... through the body!
That's good."
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A question to Brian L. or anybody since he linked to that absurd piece in The Guardian attacking Chomsky. Can he or anyone tell me what in Chomsky's political writings rises above the level of simple political reporting? I have no interest in those who attack him -they're hypocrites or idiots or both- but his partisans annoy me. What could Chomsky tell me if I asked him a question about the relationship of the individual as such to the collective? What would he tell me in response to questions concerning the necessity of coercion in any organized activity? I have no interest in hearing more vague anarcho-syndicalism. Chomsky's fine. I love him; great guy; right on all the basic issues, only because he pays attention to every detail. But let's talk philosophy for once.

I couldn't help myself.
In answer to a question:
I am an atheist. I have few formal -as opposed to informal- social ties and obligations. My parents in modernist fashion 'escaped' their pasts and family histories, replacing them with education and a sophisticated awareness of a wider world. One was an academic, the other ABD with hobbies (you can guess which of them that was.) It's safe to say that all of us were/are 'alienated' from our surroundings, myself less so, though sometimes I wonder. My parents were readers, and one of them still is a reader, of literature, which is not the same, is indeed often the opposite, of being its maker. The argument was often made in my parents' house that one should be 'in the world' and not 'of it' which again is a trait more of readers than of writers. Both were politically active from the 1950's on.
If my life has taught me anything it is to be wary of that 5% of the population that sees itself as being able to describe, and from that assumption to design and redesign the structures that define the existence of the other 95%. I am not talking about politicians, who are part and parcel of the world, but about intellectuals, a percentage, who aren't.

I live with that 95 percent. Any third rate writer of detective fiction does. So did Shakespeare and Montaigne. Living in that world, and thinking perhaps that its collective history is of more value than the works of those who are proud not to, does not make me a believer in mythologies.
I think Marx would agree.

Riverbend. Riots, gasoline shortages, blackouts, and how to explain to a seven year old in Baghdad that people sometimes choose to eat dinner by candlelight. Then a discussion of rising ethnic tension. The last paragraph:

I once said that I hoped, and believed, Iraqis were above the horrors of civil war and the slaughter of innocents, and I'm clinging to that belief with the sheer strength of desperation these days. I remember hearing the stories about Lebanon from people who were actually living there during the fighting and a constant question arose when they talked about the grief and horrors- what led up to it? What were the signs? How did it happen? And most importantly... did anyone see it coming?

Can Israel Escape a Binational Future?
According to Ha'aretz, Dr. Yitzhak Ravid, a senior researcher at the Israeli government's Armaments Development Authority, called for Israel to "implement a stringent policy of family planning in relation to its Muslim population." In case his meaning wasn't clear, Ravid added: "the delivery rooms in Soroka Hospital in Be'ersheba have turned into a factory for the production of a backward population."

Looking the blog today I saw a post from saturday I thought I'd dumped without publishing. It's still there.

Juan Cole: Wrangling over the future of Kurdistan.
Patriotic Union of Kurdistan leader Massoud Barzani, a member of the Interim Governing Council, announced Sunday that the Kurds would not be satisfied with provincial federalism in Iraq. It was not enough that each of the 18 provinces retained certain privileges not granted to Baghdad. He wants the Kurdish regions to be constituted as a super-province, and wants it then incorporated into Iraq only as part of a loose, perhaps Switzerland-like, canton-based federalism. (AFP, ash-Sharq al-Awsat).
In response, the leaders of the 500,000 Turkmen in Iraq announced that they would oppose the incorporation of the oil city of Kirkuk into any such Kurdish super-province. (ash-Sharq al-Awsat)
The potential for ethnic strife over this issue is enormous. The Shiite al-Da`wa Party has in the past rejected this Kurdish formula for very loose federalism in favor of strong central government. Turkish officials in the past have also said that they will intervene militarily in Iraq to prevent Kurdish autonomy.

From Max:
Jim Heartfield on Qadhafi.
Homepage here.

Aside from illness, my posting ability is limited by the fact of the rental laptop. I have no access to my files, no mouse, and a tiny screen. And aside from the fact that I'm unfamiliar with OSX, the shop has it loaded on an ancient ibook, making it run slowly, even by my standards.

Away from the sickbed for a moment. One comment and I'll return to it:
Peer review is not a scientific construction but a social construction applied to oversee scientific practice. It's about as scientific as a court of law.
Got me?

And the attacks on Dean this morning by Carville et al. were absurd.

Yesterday I spent the day supervising a crew of Mexican immigrants demolishing the interior of a small building. For the first time in 20 years I didn't pitch in and help. I felt their contempt, a contempt I'd always consciously avoided. This time I bought them coffee. I didn't think it would change anything, and I was right.

My computer crashed this afternoon so I'm on a rental: a machine almost as old as my own and which I can not afford (any more than I can afford the repair bill.)

Lula the populist is thinking short term. I understand the reasons, but he could not be more wrong.
From The Guardian:

This is the Amazon, a vast lung producing 20% of the earth's oxygen, and home to 30% of all plant and animal species. It is so immense that it would swallow Europe in full and three more Englands besides.
The rainforest is shrinking at a rate that is staggering environmentalists. Around 25,000 sq km (10,000 sq miles) disappeared last year - an area about the size of Belgium. Brazil's environment minister has confirmed to the Guardian that this year's figures will be as bad. Others think they will be worse.

Am I the only person on the planet to argue that the fight is not between reason and faith but between faith and skepticism? Edward Rothstein tries to strike a balance in his piece in The Times today but misses the point. He did remind me that it was Richard Dawkins who coined the odious name of 'Brights' for the partisans of rationalist metaphysics. I'd suggest 'Brite' as the spelling most appropriate to the banality of his ideal.
At this point I'm willing to suggest to the brites that we abolish our outmoded system of adversarial justice, based as it is on the mistaken assumption that no one person should be allowed to stand for truth, and let atheist mathematicians run the courts.

Link from Josh Marshall, TPM.

Right now, there is no Iraqi state and, in the absence of an Iraqi leader, President Bush holds power. Of course, Iraqis won’t get to vote for him when they do eventually go to the polls, and for that, at least, he can be grateful. His apparent impatience to get out of the country suggests that he recognizes how difficult it will be to maintain the claim that he is that country’s liberator even as he serves as Commander-in-Chief of an increasingly relentless counter-insurgency campaign. The President cannot afford to lose Iraq. What is less obvious, with the guerrillas setting the agenda, is what the price would be to win it.
Philip Gourevitch.

"I know. It's beginning to seem corporate law is criminal law."

A note from Tom Bell, one of the 'Fucking idiots' linked to below, and the author of the quote.
I was much less harsh in the email version, and didn't include a link,
so now I'm racked by guilt (sort of.)
It's hard being human.

The Guardian put out the second list of the Best British Blogs, and the award for the best written blog went to Belle de Jour.

...[T]he diary of a London call girl. There's obviously a prurient and titillating element, but the quality of her writing took her blog well beyond that. Some judges were concerned it was a work of fiction, but even if it is, it remains an impressive piece of writing.
As Bruce Sterling, one of the judges said: "Archly transgressive, anonymous hooker is definitely manipulating the blog medium, word by word, sentence by sentence far more effectively than any of her competitors. It's not merely the titillating striptease aspects that are working for her, but her willingness to use this new form of vanity publishing to throw open a great big global window on activities previously considered unmentionable ... She is in a league by herself as a blogger.

I agree.

As you read the report, you're going to have a pretty clear idea what wasn't done and what should have been done... This was not something that had to happen.
14 hours later it's old news, but it's still interesting

My apologies, but the fact that Brian Leiter links to these fucking idiots makes me wonder. And linking to a post that contains this flourish of oxymoronic wisdom just adds to my confusion:
"I'm a corporate law person. All I know about criminals is I don't like 'em".
Say what?
And Bob Bork, as far as I can tell, is now a drunk and not much else.

Adapted from a note to Brian Leiter, in reference to Simon Blackburn, writing on Richard Dawkins:

Love is a Rose!!? Love is an emotion and a rose is a flower! A flower is a plant! How in god's name can an emotion be a plant!!

Language is a slippery slope. Once you allow metaphor, you risk the chance that someone is going to take it literally. You wanna get rid of religion, go to the root of the problem.

I sent off a couple of letters that may get me involved in an interesting conversation. I'll write something, or post the letters and responses-with permission- if anything comes of them.
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Listened to NPR this morning, and to interviews of the families of soldiers in Iraq, who were questioned on their response to the capture of Saddam. Treated as experts, they responded as if they knew what they were talking about, while making comments based on ignorance and wishful thinking.
This was not democracy, but a mockery of it.

Sometimes you read something, a description of a life, that makes you feel the loss deeply of someone you never knew existed. I had that experience reading Anne Midgette's obituary for the German Bass-Baritone Hans Hotter.

He came to music only slowly, though, and initially studied organ, with an eye to training as a conductor, until his music teacher got him a hearing with Matthias Römer, a singer who had studied with the great tenor Jean de Reszke and sung Parsifal at Bayreuth. Römer was immediately convinced of the potential of Mr. Hotter's voice, but it took a lot of persuading to get the young man "to leave music aside and become an opera singer," as Mr. Hotter later put it.

I'm awaiting Nathan Newman's post about tonight's episode of The Practice. Brian Leiter is interested, unless I'm mistaken, in the scientific analysis of what works in a courtroom, with no distinction between legal and non legal argument. Nathan I sometimes think is with Alex Cockburn in criticizing of the rule of law itself. Tonight's episode reached it's climax in an act of jury nullification, in the case of a black woman who killed a drug dealer in cold blood, and ended with the victorious defendant delivering a populist, near fascist, call to arms of the people against crime and criminals, while her lawyers watched nervously from the background. A nice subtle touch.

Juan Cole: Reflections on the Capture of Saddam Hussein
And an interesting final paragraph:
My wife, Shahin Cole, suggested to me an ironic possibility with regard to the Shiites. She said that many Shiites in East Baghdad, Basra, and elsewhere may have been timid about opposing the US presence, because they feared the return of Saddam. Saddam was in their nightmares, and the reprisals of the Fedayee Saddam are still a factor in Iraqi politics. Now that it is perfectly clear that he is finished, she suggested, the Shiites may be emboldened. Those who dislike US policies or who are opposed to the idea of occupation no longer need be apprehensive that the US will suddenly leave and allow Saddam to come back to power. They may therefore now gradually throw off their political timidity, and come out more forcefully into the streets when they disagree with the US. As with many of her insights, this one seems to me likely correct.

Of course Hussein is not going to be handed over to an international court, causing a further erosion of our government's credibility in the eyes of pretty much everyone else.
[update: Silly comment. His trial will be public; Bush isn't that stupid.]
And the war will go on.

In periods of real crisis, serious moderates and serious conservatives start talking sense. So who needs a leftist?
All of us are stuck, waiting for the peasantry to pay attention.
That's why I've been talking philosophy and literary analysis.
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The week in review:
He's alive, and has stories to tell.
Fuck Taiwan (I'm sorry.)
Halliburton
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The political system of this country is not based on educating successive generations of the electorate, but on asking them in all their ignorance, what they want. As I've said before, the result is nothing more than a negative feedback loop. When Dan Rather asks "Why do they hate us?" or when Tom Brokaw[?] asks John Kerry again and again if the capture of Hussein isn't a big boost for the president, both are being utterly sincere: they are afraid to have opinions about topics that only The People can speak to. Let's wait for a poll. Of course there's corruption, but things precede it.

I'm interested in Iran and China because the people in both societies are engaged in the debate over the rights and responsibilities of democracy. Culture and democracy as its modern form are my interests. Nation states don't interest me much, so the decadence of this country is something I can only describe.
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Prostitution is the defining of one's own body in the terms of technocracy. Like technocracy itself, not only its causes but its consequences are tragic. But who am I to criticize the decisions of someone who chooses, out of what they consider necessity, to see their body in this way?
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Bar Conversation.
"It's difficult with the [job title]s. They think I have too much power.
"And in theory you work for them"
"Yeah, but we have the same boss, and I talk to her and know more than they do at this point."
"[Job title]s are all women, right?"
"Mostly women... Two men."
"Sleep with the women. Fuck the men."
Ah, the ambiguities of language.

A story from the history of The Journal of Philosophy. It's from the mid 80's, and I know those involved.

After a summer teaching at another university, a graduate student at Columbia returned to New York, and to her job at the Journal office. How were the students? she was asked. "Fine", she responded. "But it was weird. They were all obsessed with sex! Not the idea of sex, or the meaning of sex, but sex!"

Temporary title (suits my mood).

From a note, regarding legal realism among other things:

My interest is in esthetics. I think, for example, that cultures are collectives, that we create systems of normative activity and that we function within them. The arts are orders of esthetics that are not usually considered banal, even if they are entirely self supporting. Actors are liars, but profess depth. Fiction is 'un-truth' but is not cheapened by that fact. If culture precedes all, even science -in interpretation and function (no more no less) [science can't justify science]- then culture must be understood on its own terms. I believe in the [legal] priesthood, as I would argue in a sense for a philosophy of normative rhetoric.

There are master fiddlers and masters at chess; there are painters and poets. And there are scientists.
Science can't argue from sophistication, because it can't handle the facts on the ground -anger, lust, fear- and because given the limitations of our communicative skills, given that every communicative act is one link in a game of telephone (Derrida didn't invent that notion did he?) we need those who are skilled at interpretation. We need an ideal of 'wisdom.'

Another tack: Every individual act is considered superior -my word- in a court of law to any definition of that act. A trial is an act of naming. And at the end of the trial only that single instance is given a name.
Act "X" occurred. What is it? How do we describe it? What are the words? For this we need masters of rhetoric, in an adversarial relationship etc.
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This is the fun part:
The normative, as such, is a function of any given system, and can not at such be denied its role in argument.
Anti-foundationalism is not banal if the system it describes is complex enough to exist as an organic whole. Society as a collective construction, is complex, self perpetuating and foundationless. Technocracy is foundationless, simplistic and inorganic, and is arguably the very definition of banality: an inorganic, indeed anti-organic, totality.
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Terribly written, unclear, cutting corners.  "For this we need masters of rhetoric, in an adversarial relationship etc."  Because trials are concerned with findings of "fact" not findings of "truth", and the most important thing is that the community agrees on the outcome.  The legal realism of lawyers is not the legal realism of legal philosophers. I did this so much better later on.

Earlier today I was ready to describe the web, if not the western world, as being made up primarily of narcissists and technocrats; of the two, narcissists generally being more attractive and better in the sack, but both otherwise bearing the marks of a stunted emotional and intellectual life.
But then Max Sawicky made me laugh.

Check out the last few posts on the budget and employment. Max has got some good material.
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And if thanks to Max I am now in a better mood, I'm still the same man I was 20 minutes ago.
A state predicated on the superior political position of a specific ethnic group is by definition a racist state. Is this not clear? If not, to whom? Defend Jewish exceptionalism all you want but don't be so stupid as to deny the obvious. The popularity of the Geneva plan is all well and good if you like Bantustans, and it may be the best the Palestinians will get for a while, but please spare me your self-serving false morality.

Lets see how much I can pack in here. (I'll fix it later)

From a series of posts here Quoting a law review article:

For morality to guide us appropriately, she argues, we need to know what it would be best to do (with full information), not what it is best to do given the imperfect information that we actually often have. But I think this is wrong, or at least overstated. Yes, it does help to know what would be best to do ex post (given full info). But it is also critical to have principles guiding our actions in cases of imperfect info. We want people to make reasonable choices ex ante about using defensive force etc. So we want them to make reasonable and (ex ante) justifiable inquiry into the facts, though not so much inquiry that this disables them from acting in a timely manner etc. In short, we don't actually want people, in all cases, to come as close as possible to full information before acting; for that might lead to an even higher probability of (ex post) unjustifiable acts. The principles we should adopt to guide action should consider, not just what would be the best thing to do ex post, but what are the best informational and action strategies for getting there.

Of course she's wrong. I'm amazed such arguments are still made, but as long as philosophy is centered on a search for solutions -for mechanisms- rather than on the definition of problems they will be, and the same fights will be held over and over in the classroom rather than in the courts where they belong.

On a similar point, relating to a discussion of the conceptualization of mistakes as 'justifications' or 'excuses':

All depends upon what the substantive normativity of a given criminal law regime is best understood to provide -- a question that is largely anthropological

I posted to comment on this post. I went off half cocked, but raised a couple of interesting questions I think.

A soldier who kills an enemy in battle is morally responsible for the death of another, but is not morally responsible for the 'crime' of murder. Given this, when are the questions of law not "anthropological?"

I'm understanding more and more why I never became an academic. It's not just because I'm lazy. I'm sick to death of people who have ideas, and ideas about ideas, and responses to ideas about ideas.
Ideas are easy and there aren't very many of them around to have. The long quote above about morality and principles comes from a discussion between people who have 'ideas,' but the interesting subject is not that of ideas but conflicts.

Law is not about ideas but about the conflict between/among them. The Bourgeoisie is not a homogeneous entity but an agglomeration of those whose common position is one of doubt. "What are we?!" This doubt is the engine that so fascinated Marx. The re-asking of this question, the rediscovery of this struggle is what engaged Michelangelo and Shakespeare. Go to the Academia in Florence and look at blocks of stone that do not illustrate but make manifest an unresolved and unresolvable dialectic of a man at war with himself. I posted something about this in relation to the more skillful but less complex Bernini a few months ago. The banality of science, and I'm really getting comfortable with that term now, is that it goes only in one direction, and struggles for only one thing, and this thing it calls 'truth.' But truth is a metaphysical concept. The struggles of science are for facts: banal in themselves. It's the desire that makes science morally profound, and any desire that is not self-reflexive is dangerous. It has nothing to go up against. "After all," science asks "What opposes 'truth' but ignorance?"

What is the relationship of the individual to the state, and of the state to the individual?
Struggle.
Who's in the right?
It all depends.
On what?
On who makes the best argument this time around.
According to what logic?
An imperfect one.
[And What's the difference between the collective and the state?]

This is where the action is. This is where the stakes are high. This is what's fun.
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On The Natural History of Destruction.

Michael Kimmelman has a piece in The Times today which as luck would have it includes a discussion of the book I didn't succeed in polishing off last night. Sebald describes the avoidance of memory in post war Germany, the memory of the violence done to the German people, in the context of the denial of the violence perpetrated by them. He also relates this to the sort of autistic hyper-functionality that defined the post war state and population. But he also includes a discussion of "Bomber" Harris, and the British decision to bomb civilian populations even when hitting industrial sites would have been more useful to the war effort. And he does all this alongside a brilliant discussion of those who had been victims of the regime, who considered it their duty to remember, and of its servants, who claimed to speak for memory while absolving themselves of responsibility.

Aber etwas fehlt.

I remember in the mid 80's reading a memoir by Canetti, "The Play of the Eyes," soon after reading Primo Levi, and finding Levi flat by comparison. There was almost no art left in Levi's writing. The text was so self-effacing, so humble in its search for the memory of others that art would seem an indulgence. I preferred the arrogance and indulgence of Canetti, of the one who escaped intact.

Sebald discusses Peter Weiss'...

struggle against 'the art of forgetting,' a struggle that is as much a part of life as melancholy is a part of death, a struggle consisting in the constant transfer of recollection into written signs. Despite our fits of 'absence' and 'weakness' writing is an attempt 'to preserve our equilibrium among the living with all our dead within us, as we lament the dead and with our own death before our eyes, in order to set memory to work, since it alone justifies survival in the shadow of a mountain of guilt... The artistic self also engages personally in such a reconstruction, pledging itself, as Weiss sees it to set up a memorial, and the painful nature of that process could be said to ensure the continuance of memory.

It's only human to forget.

I scrawled this in the back of the book a couple of days ago.

"Unlike Levi and (Jean ) Améry and Weiss/ the men who no longer have the luxury of forgetting, of remaking, of lying, of art. The emptiness of those who must become memory machines, of those who must become unhuman to document the memory of others. Suicide the only end."

The memory machines are the tragic parallel to the forgetting machines of the German post war miracle.
It's odd no one discusses this.

We all knew he was a war criminal, but it's getting harder for his friends to deny it.

"He reportedly does not travel abroad without consulting his lawyers about the possibility of his arrest."
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Yesterday in The Guardian:US jobs market continues steady pick-up
Today: Disappointing US jobs figures drive dollar to new low

Also from The Guardian:
"I served more than seven years as a pilot," said Captain Alon R, who, like all the younger pilots, hopes to return to combat flying and so declines to use his full name in order to retain his security clearance. "In the beginning, we were pilots who believed our country would do all it could to achieve peace. We believed in the purity of our arms and that we did all we could to prevent unnecessary loss of life.
"Somewhere in the last few years it became harder and harder to believe that is the case".
Better late then never. It's a good thing, but that's all I can say.

A team of military lawyers recruited to defend alleged terrorists held by the US at Guantanamo Bay was dismissed by the Pentagon after some of its members rebelled against the unfair way the trials have been designed, the Guardian has learned.
And some members of the new legal defence team remain deeply unhappy with the trials - known as "military commissions" - believing them to be slanted towards the prosecution and an affront to modern US military justice. The Guardian

Read Nathan Newman on one lousy, disgusting, bit of judicial activism. Then go tell your friends about it.

I got the last one from Atrios

CLICK!

Some notes:
1:Crooked Timber again.
2: Alan Ryan on Amartya Sen
I read the piece on Sen when it came out and in my ignorance was struck first by the following reference, which I've had to type in from the copy on my desk. It refers to the work of Kenneth Arrow.

In 1950, Arrow... published his 'impossibility theorem'... which showed that (given a few quite irresistible requirements) there is no rule for combining individual preferences into a social choice that does not generate paradoxes. Suppose, for example, that a society wants to decide whether the proceeds of a national lottery should be spent on education, health, the arts, or sports. We are tempted to think that there must be some way of taking each citizen's preferences about the outcome and combining them to produce the choice of society as a whole. Arrow's theorem demonstrated that there is not.

The article then continues on to a discussion of Social Choice Theory as put forth by Sen and others. What bothers me about the discussion is what bothers me about all technocratic systems. Even Sen's structures are too controlling. They're too anti-Freudian: they make me want to rebel in the name of a sort of very human but blind principle. This needs explaining.
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A few months ago I put up a post about how the ambiguities of legal debate in the courts and in the classroom create a flexible, dynamic, 'natural' structure that mimics the structure of religious organization without the need for metaphysical gobbledygook, and this because the only rules put down are technical rules for argument and not for result.
The discussion of how laws change parallels how religions adapt, and in both cases, the fact is conservatives can't win. Change -adaptation- happens to religion and to law as it does to language. But structures remain structures.
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Here I'm going to jump a bit, make a quick comment, leave off for the night (and get drunk.)
One of the many things that annoy me about young technocrats is that when they move into working class neighborhoods they pay not only little respect but little attention to the people they are displacing. And I mean this not only in terms of their rudeness, but their lack of curiosity. A working class community is a social ecosystem, predicated on systems of mutual support and of coercion. The community is defined by social rules that are considered a priori, even as they were created by the community itself. The 'New People" or 'Liberals' or 'Assholes'- among the various words the community uses to describe the young conquerors- do not understand or appreciate the purpose of these rules. I wrote it almost by accident but I'll repeat it: The community is defined by social rules that are considered a priori, even as they were created by the community itself. My point is this: No technocratic construction can or will replicate the complexity of such self regulating systems. But left-liberals as well as conservative 'economic' liberals are unwilling or unable to criticize the primacy of the individual actor.

"...but the individual, as such, is not the centerpiece of our system of law. The system itself is."
I have to slip that in somewhere
Enough for now.