‘Markets’ Obscure Questions of Justice

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

What is Democratic Efficiency?

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.

Democratic Legitimation

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

How Judicial Politics is Like Area Studies

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.’

Law and the Politics of Legitimacy

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)

A Condition is Not a Problem: The Impact of Sandy

[Update: I follow up on this post here, with a bit more on the political aftermath.]

There is an old saw in political science that difficult conditions become problems only when people come to see them as amenable to human action. Until then, difficulties remain embedded in the realm of nature, accident, and fate—a realm where there is not choice about what happens to us. The conversion of difficulties into problems is said to be the sine qua non of political rebellion, legal disputes, interest group mobilization, and of moving policy problems onto the public agenda.  Deborah Stone, “Causal Stories and the Formation of Policy Agendas” (1989).

What this means is that – despite the way we often talk about policy making both in political and academic discussions – it isn’t the case that facts lead simply to political action.  It’s quite common for some serious condition to fail to crack the agenda.  When it does, it won’t be simply because the condition has gotten worse, or because science gives us a clearer or more certain picture of it. Instead, the translation of a condition to a problem is a political process, a product of intentional action.  It isn’t natural – it doesn’t just happen.

I couldn’t help but think about this as countless people in my twitter feed either insisted that Hurricane Sandy would finally lead us to take climate change seriously, while others asked if we would as if it was simply a matter of how others reacted.  Either way, this is a wrong-headed way to think about it.  But it is also an extremely common one.

Underlying such statements is often a general model, one familiar to political scientists, although we often don’t make it explicit.  In this model, conditions are noticed by the public, which leads to changes in public opinion. This puts new issues onto the agenda, both terms of news coverage and formal government activity (committee hearings, government reports, bill proposed).  Interest groups form to champion the cause, or existing groups adopt the cause as their own, as long as voters are interested. Politicians, being driven largely by concern for re-election (here, meaning pleasing voters, which is not in fact necessarily the same thing) seek to take leadership roles on the issue.  If they don’t, they are punished at the ballot box, since unorganized voters have all the power.  Either way, this leads to a formal decision specifying some policy change. (‘Policy’, meaning a good faith effort to solve some commonly accepted problem through rules, rather than shifting decision-making to some other entity, and only secondary concern with the economic benefits to different corporations or industries that result).

Spelled out, it sounds naive.  And it is, which is why it’s rarely spelled out.  But this model is implicit in a great deal of our political talk.  Many others would take issue with some element of it, yet it still provides the assumed starting point.  And it makes effective action quite difficult, because the picture it paints is actually a formalization of a series of legitimations about separation of powers and democracy rather than a realistic or useful model of how politics works.

OF course, many people realize all this.  Bill McKibben notes the standard approach to these sorts of disasters is using the example of gun violence to introduce his point about climate change.

Crises come with a predictable dynamic in this country: 1) Gunman opens fire in crowded school/theater/shopping mall 2) anguished op-ed columnists say we should talk about gun control 3) we don’t. Now, in fact, we often collapse two and three—the anguished columnists just write about how we should talk about gun control, but of course we won’t.

Rejecting the dynamic for McKibben includes worrying less about the media, formal decision makers and ‘public opinion’ and more about aggressively challenging those with the real power.

So maybe this time, instead of waiting for history to repeat itself fruitlessly, it’s time to go where the action is and tackle the fossil fuel industry. 350.org, the global climate campaign I helped found, is launching a 20-cities-in-20-nights roadshow the night after the election in Seattle. We’re doing it no matter who wins, because we want to target the real players: each night, around the country, we’ll be engaging students from the local campuses, planting organizers in an effort to spark a divestment movement like the one that helped bring down apartheid (during the Reagan administration, with a GOP Congress).

I make no predictions about whether this will be successful. But I do think that changing how these problems are approached is essential. And maybe in doing so, people would come to a more nuanced understanding of how politics works, one that is less rooted in the civics textbook understanding of politics and a purely partisan lens. and more in an understanding of the vast power corporations hold not only over formal decisions, but the formal agenda and even what sorts of solutions can be discussed or held to be out of bounds and unreasonable.

Just because we can’t afford not to do this doesn’t mean we will. It is still a choice.

Rights as a Claim and a Resource

Instead of thinking of judicially asserted rights as accomplished social facts or moral imperatives, they must be thought of, on the one hand, as authoritatively articulated goals of public policy, and on the other, as political resources of unknown value in the hands of those who want to alter the course of public policy.  Stuart Scheingold, The Politics of Rights

An Electoral Mandate is a Claim, Not a Fact

From four decades of intensive research on voting behavior, political scientists know a great deal about the determinants of individual voting choices.  We know much less, however, about elections—the institutions in which these individual choices take place.  This is a serious shortcoming, for it is elections that link voters to governance.  The nature and quality of this linkage has long been a primary concern in the study of politics, especially democratic theorists.  To some, the only purpose of elections is the permit voters to choose among political leaders; in short, that voters cannot or should not control the choice among politics in any more direct way.  Many others, finding such limited control insufficient for a democracy, seek to show that elections can and should have policy meaning if subsequent government programs are to be seen as legitimate.  [snip]

The idea of a mandate…plays a major role in the justification of elections as institutions and in the effort to construct explanations for particular election results.  It helps also to reassure citizens that their primary forms of political participation–the vote-had an impact on the policies to which they will be subjected.

These words were written by Marjorie Randon Hershey in 1996.  They are, admittedly, a bit disturbing.  I’d like to believe things have improved since that time, but I’m not so sure.  Since the 1950s (at least) political science has looked to individual formal decisions as the key to understanding politics, and often towards some internal factors, be they interests, attitudes, or ideas, as the causes of those decisions.  Votes, court rulings, roll calls–these are the sorts of things political science has focused on. Things which fit comfortably with this sort of approach were foregrounded, things which did not were obscured.  While plenty of criticisms of this approach have been voiced, the basic model has remained.  A certain idealized view of democratic elections serves the same role for political science does for markets–it is the starting point no matter how much research suggests it is not  a very useful way of making sense of the world.

What’s more, there is a presumption–especially in the field of judicial politics–that elected officials were presumptively legitimate, whereas judges, are not, especially when they challenge the decisions of elected officials (i.e. when they exercise judicial review to strike down a law or executive action) .  That’s not true on either account.  Elected officials may find their legitimacy challenged, and judges often act to strike down laws without controversy.   This notion confuses democracy as a normative idea with democracy as an empirical explanation.

The standard move for a political scientist when confronted with the idea that an idea is an essentially contested concept, one that necessarily blends normative and empirical dimensions, one that, as a result, cannot be settled with facts, is to abandon the idea.  That which cannot be settled should be abandoned for terms that can be operationalized.  But this means avoiding talking about things that political actors take very seriously.  As Hershey says:

No matter how difficult it may be to agree on a definition of mandate or to locate one in practice, it remains a powerful concept in political discourse.  Politicians claim mandates in order to legitimize bold actions, journalists use the term frequently in interpreting elections, and scholarly studies continue to focus on various aspects of the idea of a mandate.  In short, mandates are a central democratic myth–”an unquestioned belief held in common by a group of people that gives events and actions a particular meaning.”  As a myth, the idea of a mandate gives meaning to election results and thus has a potentially important effect on the abilities of administration to govern.

I started to think of this excellent piece as I read various discussions of what the meaning of the upcoming presidential election would be from a few left leaning sources. While they disagreed on the answers, all asked the same questions–would there be a mandate, what would its content be?  Lost here is that a mandate is not a thing that exists, like a chair or an apple, but a claim.  It results from politics, as politics is largely a contest of claims.

So the better question is, what claims will be made in terms of the meaning of the elections, and which ones will be successful?  How would the two main parties interpret it, and how would the media treat those claims?  For what it’s worth, I think the right largely appreciates this. I doubt they would ask these questions.  If Romney were to win, they will claim it’s a mandate for conservative policies.  If Obama wins, no matter how large, they will claim it means little.  How about the other side?  I doubt the Democrats will claim any victory, no matter how large, is a mandate for liberalism.  Those who hold the reins of power in the party have long been neoliberals.

As a result, no amount of polling evidence would lead to voters being seen as demanding some liberal outcome.  Any such claim would not be seen as ‘reasonable’, but rather ‘political,’ in large part because it would be outside the bounds of what either party would accept.

This is why I get frustrated with repeated efforts to show that Americans don’t support this, or American oppose that, by those who seek to challenge far right positions or bipartisan consensus.  It quite simply doesn’t matter.  Either activists mobilize those opinions by engaging people to hold them to act, which has to be something more than voting, or such opinions will have no impact. Citing polls won’t change that (although polls can and should inform efforts to mobilize people).

Scholars and activists would do well to understand that democracy isn’t a particularly useful analytic framework, but that it is a powerful myth, that can be mobilized.

Discourse on Terrorism and Law as Objects of Analysis (Great Footnotes in History)

This footnote, from Lisa Stampnitzky’s excellent article Disciplining an Unruly Field: Terrorism Experts and Theories of Scientific/Intellectual Production (pdf), deserves some additional attention in its own right, beyond the specifics of the field or terrorism studies:

As I worked on this project, two questions have been posed to me repeatedly: What is terrorism? And who is a terrorism expert? One set of askers takes these questions as the presumed conclusion to my study: what is terrorism, really? And who are (really) terrorism experts? The second set of interlocutors, meanwhile, takes these questions as necessary preliminaries to the study: how do I assign values to these concepts, so that they might be measured and analyzed? The goal of this project is indeed to investigate terrorism, but not in either of the ways presumed above. Rather, the study takes as its object these very questions, asking how and why they have become meaningful.  To clarify, I do not seek to determine who is “really” an expert; the processes through which this question is contested are, rather, the core of what I observe and try to explain. When I speak of “experts,” I refer to the pool of those treated as experts and those hoping/trying to be treated as experts; with “expertise” being the products, findings, knowledge, statements of these populations. [my emphases]

I can relate.  My dissertation research focused on how reformers sought to achieve reform, and how those seeking reform and those seeking to block it contested the boundaries between law and politics in order to legitimate their own positions and delegitimate the other side’s positions.  But what others often either interpreted me as asking, or presumed I should have been asking, was how such efforts impacted judicial decision-making. This was all the more odd since ultimately the litigation was resolved through settlements, which is the norm.  That framework organized much of our thinking about politics, and it’s difficult to break free of it. (I’ve also argued decision-making as a concept is incoherent and undefended, but I’ll save that for another post.)

I think including a statement about how, if at all, your project has been misunderstood would be a valuable thing in books or articles presenting scholarly work that challenges conventional ways of thinking.

Economic Myths and Other Possible Worlds

Harold Meyerson has a really good piece on “The Failures of Shareholder Capitalism.” I like this for a number of reasons, including that the idea that having socialized ownership (by numerous individuals or more often, institutions) isn’t really the same as 1) the way the economic system was ordered when the economy was far healthier, i.e. in the 50s and 60s, or 2) as the idea of capitalism, which focuses more on individual ownership. (Ok, that bit about stock holding as a form of socialism is my gloss, but it’s a good point whether it gets that label or not).

The whole thing is great but this is especially important.

Still, the myth of shareholder power, and especially individual shareholder power, is continually attested to by corporate managers and their apologists because it legitimates the current system of corporate governance and the division of corporate riches. CEOs don’t acknowledge that the system is rigged in their favor. But the rise of shareholder capitalism — the doctrine that has dominated corporate conduct since the early ’80s, as corporations’ raison d’etre has been reduced to maximizing shareholder value — has been a boon to top executives. They have been able to tie their compensation packages to rising share value (and untie it when share value falls).

The transformation of the shareholder from an individual with a long-term interest in the company to an institutional short-timer with myriad other investments raises a deeper question about corporate governance: Why is it that shareholders, at least theoretically, are entrusted with electing corporate boards? Why aren’t more long-term stakeholders with a genuine interest in the company’s success — say, their employees — also represented on corporate boards, as they are required to be in Germany? German corporations are thriving, even though (or more likely, because) their CEOs are paid radically less than ours and their workers command a higher share of gross domestic product than ours.

I’ve long thought we do ourselves a disservice by simply adopting terms developed long ago to describe very different economies that today serve mostly to legitimate the rule of the powerful and which are not generally taken very seriously by their proponents.  (James Galbraith makes this point is his excellent book The Predator State: How Conservatives Abandoned the Free Market and Why Liberals Should Too.)  The legal realists* did this once before in the lead up to and wake of the Great Depression.  In the aftermath of the Great Recession, brought on by a second resurgence of market fundamentalism, we need to recover that past and extend it.

*Agnostic Liberal had a good post the other day discussing this that’s also worth a read.