Bourgeoisiologist

The concept of equality seems to be inherently unstable

Apr 022011

The concept of equality seems to be inherently unstable, but particularly when it is defined in a way that attempts to stabilize its meaning. To be more specific, the possibility of equality means there should also be the possibility of inequality. The question, then, is how one falls into either group according to the mode of definition.

The racial equality is particularly problematic because the aspect of race tends to obscure underlying problems. Affirmative action, for example, assumes a homogeneity of both the hegemonic and subaltern racial groups that does not necessarily correspond to reality. As noted in Regents of The University of California v. Bakke, “the white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals” (723). Crucially, “not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only ‘majority’ left would be a new minority of White Anglo-Saxon Protestants” (723). The execution of affirmative action, then, seems to require considerations beyond race to truly address the problem of inequality.

It would seem that as far as equality is concerned, there is a simultaneous temptation to maintain inequality–the problem is reduced to inventing new ways of justifying inequality. Ultimately, the difficulty that conceptions of equality must confront is precisely the inequality that necessitates particular modes of equalization. In many cases, the point is precisely that difference should not be grounds for unequal treatment. But because there are often concept and practical limits to the construction of equality, it is obvious that there must also be corresponding ways to construct and justify inequality. In order to defend the substance of equality, the challenge is in preventing this countermovement from dominating or co-opting the original operation towards equality.

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.

Teens, cinder blocks, and motorists

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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?

Rawls’ theory is admittedly an ideal theory

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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.

Those damned, dirty Chinese

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Feb 192011

Why does the administration exercise its sovereign state power only to authorize the plundering of its own citizens?

羅淑蕾表示，中國旅行業者在中國招攬旅客，都是用「賒帳」的方式，先把旅客找到、帶到台灣，等行程結束後再分期與台灣旅遊業者結帳，但旅客離開台灣，中國旅行業者卻向台灣方面表示「找不到人」，積欠帳款也沒有辦法支付，2年半下來積欠金額高達50億元。

It’s tempting to just demand those damned, dirty Chinese to keep their stinking paws where they belong, but it’s obvious that a conspiracy is being orchestrated from within. There’s no reason to believe otherwise especially when you already have army generals lined up to sellout the country.

The idea of neutrality

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Feb 182011

The idea of neutrality is particularly interesting. It is possible to define intervention in a narrow sense where some direct action must take place, but such a definition can easily privilege the status quo, especially given asymmetrical power relations. If we take political or legal equality as a modality through which neutrality can be expressed, it must be asked whether the lack of supposedly non-arbitrary intervention which may unbalance the condition of equality does not already promote a particular and tendentiously oriented composition of interests.

In a society where people are “equal” only to the extent that a person is “worth what he makes and makes what he is worth,” the idea of such “equality” is necessarily specific and limited. The power of capital already creates a condition of inequality which the notion of equality only seems to retroactively legitimize. While everybody may be entitled to certain identical protections and opportunities, the similarity can easily be at merely the formal and procedural level. The question, then, is whether this outcome should be seen as an evacuation of a prior substantive content or rather as the positive realization of an orchestrated telos. Gillman notes, for example, that a

significant postbellum development was the maturation of capitalist forms of production and the extent to which the transformation of the economy eroded the assumption about market liberty and republican independence that justified the prohibition against factional or class politics. (63)

To what extent ere the original “justifications” intended to be longstanding coordinates upon which the advocated modality of neutrality is to be obtained?

The question is especially pertinent since those in power to influence such trajectories were apparently acutely aware of the necessarily situational nature that structures the effects of the legal apparatus as it propagates through the tensions modulated by productive forces, for example:

In promoting access to land, Jefferson believed that he would be promoting the interests of farmers and small producers or artisans. Workers in the cities could escape low wages by becoming independent farmers; this safety valve would help ensure that wages in the cities would be sufficient to support a self-sufficient standard of living for wage earners, perhaps make it possible for them to become independent artisans. (Gillman 26)

In reviewing the various legal prohibitions

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Feb 182011

In reviewing the various legal prohibitions, contracts, etc., it seems that a direct approach is the primary way. For example, in Justice Holmes’ dissenting opinion in Hammer v. Dagenhart: “The first step in my argument is to make plain what no one is likely to dispute—that the statue in question is within the power expressly given to Congress if considered only as to its immediate effects and that if invalid it is so only upon some collateral ground” (341). The implication is that such a direct interpretation should be fairly uncontroversial for either side. Yet the crucial question is what exactly is the limit of such a direct interpretation. As Holmes continues, “[the] question then is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control” (341). Given the outcome of the majority opinion, there is clearly room for an indirect interpretation insofar as a conflict is recognized as such. And why should the State be privileged in such an encounter? Perhaps it should rather be as Holmes suggests: “[Congress] may carry out its views of public polic policy whatever indirect effect they may have upon the activities of the States . . .” (341).

This approach to the question, however, is ultimately unsatisfactory because it is somewhat unstable; specifically, it works both ways. If the problem is identified as a formal or procedural issue, it is possible to alter the outcome by tweaking certain starting premises. Moreover, a more serious issue is perhaps the implication that anything not explicitly identified as unconstitutional or illegal is therefore authorized by the law. In relation to the case in question, even where laws explicitly prohibit the exploitation of women or children, does this not become precisely an invitation to exploit those who are not explicitly protected by the law?

Shafted, as usual

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Feb 152011

Just vulgarly elementary and brutally ingenious:

全產總指出，台灣就業者每年工時高居世界第2，是因許多雇主利用勞基法的彈性工時規定及84條之1的工時基準排除適用規定，迴避勞基法對勞工工作時間的保護規定。

Needless to say, it’s also patently despicable. Even more revolting, though, is the shameless temerity in the notion that this was anything but an orchestrated tactic to disenfranchise the proletariat from the very beginning:

[. . .] 勞基法當初修正這個條文是因勞基法擴大適用服務業員工，而服務業具有高彈性、長工時的性質，不宜與製造業一概而論。

The absurdity of such apologetics is confirmed by the countless, nameless victims shafted because of this obscene legislation under the aegis of the state legal apparatus:

保全總公司這張公文，上面寫著，因為保全適用勞基法第84-1條，所以每個月工作360小時、每天連續工作上限16小時，足足是一般勞工的兩倍，而且這公文還經過地方勞工局核准通過。

李先生因為不滿這樣的工作條件，跟公司打官司，結果連工作都沒了，吳先生也是離職的保全，以前每天工作14小時，也沒加班費。

Was it ever possible that this outcome could have been otherwise?

Smith

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Feb 112011

Smith appears to make some questionable assumptions in offering the theory of the invisible hand. The following passage encapsulates the problem:

Every individual is continually exerting himself to find out the most advantageous employment for whatever capital he can command. It is his own advantage, indeed, and not that of the society, which he has in view. But the study of his own advantage naturally, or rather necessarily, leads him to prefer that employment which is most advantageous to the society. (IV.2.4)

It is unclear that every individual actually strives for the most efficacious “employment” of his capital, even granting that the measure of efficacy is not necessarily objective, and could be based on an individual’s subjective assessment. A relevant and unavoidable issue in this regard is the asymmetry of information that results in the potential discrepancy between subjective evaluation and the objective reality. As Hahn puts it, “agents on one side of the market have information which is superior to that possessed by agents on the other” (7). But this level of analysis is already assumes one step more than it is necessary; in fact, there seems to be nothing that would prevent one from engaging in a transaction that is “detrimental” insofar as it fails to maximize profit—a simple act of charity, for example. Of course, one could convincingly argue that charity might merely be a prelude or a tactic to secure greater future gains, but this is certainly not the only modality through which charity can manifest itself.

Assuming, however, that individuals are nonetheless predominately motivated by the particular configuration of self-interest that Smith has in mind, it is unclear whether the “society” to which advantage accrues is necessarily the immediate and “entire” society to which the individual belongs. It seems quite plausible that the benefits thus obtained might be concentrated in very few hands within a society. Do these beneficiaries represent the interests of society in general? Smith clearly privileges the total sum of “benefits,” but in this case there seems to be some ambiguity in the meaning of “benefit,” especially when some elements within society may actually experience substantial “losses” in the process.

Lastly, what is the main thrust behind invoking the putatively collective interests of society? Is it to justify action based primarily on self-interest? It is a strange moment when Smith writes, “I have never known much good done by those who affected to trade for the public good” (IV.2.9). If Smith is right that society receives the greatest benefit even when every individual works to advance his own advantage, and if such a theory informs this egocentric modality, it seems that maximizing the public good is precisely the goal—why must it be hidden?

Nozick

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Feb 112011

Is interesting to consider whether the “dominant protective association” is a state(Nozick 22-25). Nozick suggests that is does constitute a state when he says it only “appears that the dominant protective agency in a territory not only lacks the requisite monopoly over the use of force, but also fails to provide protection for all in its territory” (25). One might raise some questions at this point. Does the definition of the state also imply or specify that it must be a moral or legitimate entity? In practice, it is clear that states can and do engage in activities both immoral and illegitimate. Such a question is partly in response to Nozick’s emphasis that “[we] have discharged our task of explaining how a state would arise from a state of nature without anyone’s rights being violated. The moral objections of the individualist anarchist to the minimal state are overcome” (114). Additionally, the question is a prelude to what is perhaps a more important question: can the state be positively identified as a centralized or limited entity?

In practice, many functions which might otherwise belong to the state are in fact outsourced to private parties. As such, how is the scope of the state to be defined? Indeed, the idea that a dominant protective agency can provide certain functions which qualify as state functions suggests that a state might actually be coterminous with its effects. Given that Nozick positions or attempts to legitimize the state in opposition to a condition of anarchy, it seems that he must limit the scope of the state to certain positive embodiment of its functions. Yet, this seems to discount the role of the state in enabling and sanctioning various functions within it’s boundaries. If these functions are an extension of what might otherwise have been direct state function, it would seem that this entire network should be interpreted as one large and complex state apparatus.

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