A critical question that arises from Ackerman’s project is the meaning of law

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Mar 202011

A critical question that arises from Ackerman’s project is the meaning of law. What does it mean exactly for some action to be legal or illegal, and moreover, is the distinction necessarily useful? Specifically, is it useful insofar as the ostensible goal–e.g. a particular line of action is achieved or a standard for evaluating and responding to such such is upheld–is accomplished? Here it seems immediately obviously that there is a range of possible responses to any given legal statute. As such, even if one were to break the law, at least in the usual sense, it is unclear that there can only be a singular response. This seems to be a crucial point in understanding the problematic that Ackerman is addressing.

According to Ackerman, many of the maneuvers involving the constitution were not necessarily legal, but were able to partly derive authority from the official legal document itself. The question is whether authority must always be obtained in the direct sense. Given the range of possible responses to a transgressive action, it seems quite easily the case that one might willingly choose to bear the officially required consequences of committing some violation. In other words, the transgression is still regulated and protected by the law insofar as the consequences cannot exceed a certain limit.

Such an interpretation of the meaning of the law helps to explain the so-called “unconventional process” Ackerman refers to as the “bandwagon effect” (39). He notes that:

At each stage, the Federalists suffered grave legal difficulties in advancing their enterprise. At each stage, some important institutions refused to cooperate on legalistic grounds. Nonetheless, the Federalists gained enough acceptance by enough standing institutions to sustain their momentum. Winning these official confirmations made it plausible for them to embark on another illegal initiative, which–confirmed once again by more standing institutions–made it plausible for them to proceed to another illegal initiative. And so forth [. . .]. (39).

Here one should note that it is precisely the official institution itself that authorizes the so-called illegal acts. The meaning of law is obviously called into question, and it might even be suggested that the law always already solicits the transgression.

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Posted by Bourgeoisiologist at 22:21 Tagged with:

Teens, cinder blocks, and motorists

尚未歸類 No Responses »
Mar 052011

An interesting, but more or less predictable perspective:

“They need to catch these kids and make them pay for the damage they have done, teach them a lesson,” Justin Wright said. “It’s not right to damage other people’s property.

This is probably an excerpt from a longer interview, but it’s still interesting insofar as the perspective is oriented around the centrality of (private) property. For many, property is undoubtedly not a negligible element of life, but it’s nonetheless worth noting that property is especially important to those who own property. One question, then, is whether “lesson” proposed includes incorporating the violators into property owners proper or, at least, subjects willing and intending to reproduce a system of private property?

What’s striking is the elevation of damage to property to the same level as potential injury to or loss of life. Moreover, these two threads are somehow the only points worth reporting. What’s interesting, then, is this particular way of abbreviating what must have been a much longer story. Surely this cannot be all that is relevant to the story?

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Posted by Bourgeoisiologist at 01:35 Tagged with:

Rawls’ theory is admittedly an ideal theory

Notes No Responses »
Mar 012011

Rawls’ theory is admittedly an ideal theory, but at times it seems that even if one accepts the theory, the theory nonetheless produces irresolvable difficulties. The notion of equality of opportunity seems like such an example. Rawls is clearly aware of the tension between formal and substantive equality. Whether he successfully negotiates the two is debatable, but the crucial question remains: how does one avoid reproducing the inequalities that were meant to be neutralized by mobilizing a configuration of equality? Rawls places much emphasis on one’s starting place:

The primary subject of justice, as I have emphasized, is the basic structure of society. The reason for this is that its effects are so profound and pervasive, and present from birth. This structure favors some starting places over others in the division of the benefits of social cooperation. It is these inequalities which the two principles are to regulate. Once these principles are satisfied, other inequalities are allowed to arise from men’s voluntary actions in accordance with the principle of free association. (§16)

Given a just system and proper starting place, however, any resulting inequality could be acceptable in principle. Since Rawls does not seem to stress the necessary coercive mechanisms that would prevent such subsequent inequalities from returning to a state of massive imbalance, it is worth pointing out that such an argument is open to cooptation by hegemonic positions to justify actually existing inequalities even if this is unintended by Rawls. One question is to what degree can men’s “voluntary actions” be considered private affair insulated both ways from the social edifice. Since men are not totally private animals, at least not in Rawls’ configuration of society, what is to prevent some permissible inequalities from begetting further inequalities? Part of the solution is perhaps to make some fundamental assumptions about human tendencies. But some of the assumptions nonetheless seem to require extraordinary support even if the reality is explicitly limited to a congress of liberals susceptible to Rawlsian theory.

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Posted by Bourgeoisiologist at 06:49 Tagged with:
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