Posts Tagged ‘Legitimation’
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)
[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.