Posts Tagged ‘Legitimation’
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.
Justice Robert Jackson, Korematsu v. U.S. (1944)
I don’t remember where it all started, but I’ve been unhappy with the concept of the decision as the central framework for political science for a long time. Very few political scientists, I should note, would say this is the case. They’d probably object to the idea that there is a central framework. Instead, they would likely focus on various different frameworks. But, being heterodox and inclined to see the biggest picture possible, it was clear to me there was a deep similarity among these different approaches. For one thing, there was so much political activity that was left out of this dominant framework, or dismissed or obscured. Of course, we might conclude that something that political actors think is important is not after investigating it, but to do so as a matter of definitions makes little sense.
Since I began developing my idea of ‘politics as a contest of claim making’ as an alternative, I find that idea all over political science, although rarely foregrounded. It seems the sort of banal point that is widely understood but rarely the basis for much explicit theorizing. But it does come up again and again. My task seems to be to call attention to it and explicate its implications.
In an interview with Jennifer Senior, Antonin Scalia valiantly dispatched a straw man. A lot of people have noted this, but I wanted to quote it, and suggest that much of the criticism, while correct, misses the main problem.
Had you already arrived at originalism as a philosophy?
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.
So first off, what Scalia is saying here is factually–incontrovertibly– incorrect. Words do change in their meaning. Some have taken this as evidence that Scalia doesn’t know what he’s talking about. And I suppose that’s possible. But it’s also possible that Scalia takes this position because it helps him advance his legal agenda. That is, it helps him justify the substantive positions he takes, the role for the Court he prefers, and so on. By making this about ignorance, we are missing the politics, which makes it difficult to push back effectively. ’Originalism is wrong’ is a fine thing to say, but what originalism is doing and how it is doing it are far more important thing to think about.
The assumption that there exist universally valid and binding standards of knowledge and action is a special case of a belief whose influence extends far beyond the domain of intellectual debate. This belief… may be formulated by saying that there exists a right way of living and that the world must be made to accept it. The belief propelled the Moslem conquests; it accompanied the crusaders into their bloody battles; it guided the discoverers of new continents; it lubricated the guillotine and it now provides fuel for the endless debates of libertarianism and/or Marxist defenders of Science, Freedom and Dignity. Of course, each movement filled the belief with its own particular content; it changed the content when difficulties arose and it perverted it when personal or group advantages are at stake. But the idea that there is such a content, that it is universally valid and that it justifies intervention always played and is still playing an important role…. We may surmise that the idea is a leftover from times when important matters were run from a single centre, a king or a jealous god, supporting and giving authority to a single world view. And we may further surmise that Reason and Rationality are powers of a similar kind and are surrounded by the same aura as were gods, kings, tyrants and their merciless laws. The content has evaporated; the aura remains and makes the powers survive.
Paul Feyerabend, Farewell to Reason
It is one of the neoliberal commandments that innovation in markets can always rectify any perceived problems thrown up by markets in the first place. Thus, whenever opponents on the nominal left have sought to ameliorate some perceived political problem through direct regulation or taxation, the Russian doll of the [neoliberal] thought collective quickly roused itself, mobilized to invent and promote some new market device to supposedly achieve the ‘same’ result. But what has often been overlooked is that, once the stipulated market solution becomes established as a live policy option, the very same Russian doll then also rapidly produces a harsh critique of that specific market device, usually along the lines that it insufficiently respects full market efficiency. This seemingly irrational trashing of neoliberal policy device that had earlier been emitted from the bowls of the [neoliberal thought collective] is not evidence of an unfortunate propensity for self-subversion or unfocused rage against government, but instead an amazingly effective tactic for shifting the universe of political possibility further to the right.
Philip Mirowski, Never Let a Serious Crisis Go to Waste
There is no ‘neutral’ or ‘free’ position: the market is regulated one way or the other. And in either case, there will be economic consequences, concrete distributions of wealth….The question, at the end of the day, is not whether to favor ‘freedom’ or ‘constraint’—in both cases, we are both freely and coercively imposing a legal regime with or without options. The question instead is to determine exactly who benefits and by how much, and more importantly, to assess politically and normatively the justice of those outcomes.
It is precisely that normative assessment that is prevented by faith in natural order and market efficiency. So long as the distributional consequences are viewed as the natural outcome of a natural order, they become far more normal and necessary. Their assessment becomes practically futile, or at least beside the point, for it makes little sense to challenge the justice or appropriateness of such natural outcomes. It is only when we let go of the illusion of natural order that we truly open the door to a full and robust political assessment of those distributional consequences—as well as of the politically and socially produced norms and rules that regulate markets and shape those outcomes.
Barnard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order
Alex Sparrow has been interested in the idea I’ve been discussing called ‘democratic efficiency.’ He encouraged me to talk a bit more about how to achieve it, and then since has written about this. His post is well worth checking out, and in many ways parallels my own thinking. But his use of the term democratic efficiency and mine are a different, so it seems worth taking the opportunity to explain my own position a bit more clearly. I also noticed as I looked through my posts that I had been defining democratic efficiency differently – by emphasizing different elements of the idea. This no doubt adds to the confusion.
If legitimation is an activity which serves to confirm the identity of the legitimator, then democratic legitimation is not an exception to this function. In so far as people act as citizens as well as subjects, they too engage in actions, legitimations which cultivate, sustain, create, or conform to that identity. ‘Democratic legitimation’ is most commonly thought of as the transfer of consent from citizens to the government. But there is another activity, also democratic, also legitimation, whereby subjects cultivate and sustain their own identity, the legitimation, not of rulers, but of citizens. Democracy involves subjects cultivating their own identity as participating and active members of the polity. A recognition of the self-legitimation of the rulers, in other words, is only problematic for democrats if it is not realised that citizens too legitimate themselves, and do so in a way which makes them more than simple clients of a democratically sanctioned state. So it is appropriate to ask where this activity can be observed. What do subjects do which seems to them similar to that of the various self-legitimating actions conducted by rulers?
Rodney Barker, Legitimating Identities: The Self-Presentations of Rulers and Subjects, p. 112
Part of the critique of the standard approaches to judicial politics that I’ve been working on involves looking at the justifications offered for why the field chose decision-making as its standard concept of the thing to be explained, and why decision-making generally came to mean formal rulings on the merits by Supreme Court justices. I’ve argued elsewhere that part of this was a mistaken assumption that such decisions were action as opposed to talk and a mistaken assumption that decisions are necessarily efficacious.* (I say mistaken both because these assumptions are not true, but more importantly because they obscure rather than illuminate). Once we jettison those assumptions, it means that other actors should be brought into better focus and whether rulings are followed is an open question. This means shifting our attention from decision-making to legitimation and authority, with the more important question being not ‘why did this actor do as they did’ but ‘how will others respond.’ Read the rest of this entry »
The word ‘law,’ itself, is always a primary object of contention. People argue and fight over ‘what is law’ because the very term is a valuable resource in the enterprises that lead people to think and talk about law in the first place….On a political level, it connotes legitimacy in the exercise of coercion and in the organization of authority and privilege. On a philosophical plane it connotes universality and objectivity….The struggle over what is ‘law’ is then a struggle over which social patterns can plausibly be coated with a veneer which changes the very nature of that which it covers up. There is not automatic legitimation of an institution by calling it or what it produces ‘law,’ but the label itself is a move, the staking out of a position in the complex social game of legitimation. The jurisprudential inquiry into the question ‘what is law’ is an engagement at one remove in the struggle of what is legitimate.
Robert M. Cover, “The Folktales of Justice: Tales of Jurisdiction.” (pdf)