Jason Brennan: When the state is unjust, citizens may use justifiable violence

If you see police choking someone to death – such as Eric Garner, the 43-year-old black horticulturalist wrestled down on the streets of New York City in 2014 – you might choose to pepper-spray them and flee. You might even save an innocent life. But what ethical considerations justify such dangerous heroics? (After all, the cops might arrest or kill you.) More important: do we have the right to defend ourselves and others from government injustice when government agents are following an unjust law? I think the answer is yes. But that view needs defending. Under what circumstances might active self-defence, including possible violence, be justified, as opposed to the passive resistance of civil disobedience that Americans generally applaud?

Civil disobedience is a public act that aims to create social or legal change. Think of Henry David Thoreau’s arrest in 1846 for refusing to pay taxes to fund the colonial exploits of the United States, or Martin Luther King Jr courting the ire of the authorities in 1963 to shame white America into respecting black civil rights. In such cases, disobedient citizens visibly break the law and accept punishment, so as to draw attention to a cause. But justifiable resistance need not have a civic character. It need not aim at changing the law, reforming dysfunctional institutions or replacing bad leaders. Sometimes, it is simply about stopping an immediate injustice­. If you stop a mugging, you are trying to stop that mugging in that moment, not trying to end muggings everywhere. Indeed, had you pepper-sprayed the police officer Daniel Pantaleo while he choked Eric Garner, you’d have been trying to save Garner, not reform US policing.

Generally, we agree that it’s wrong to lie, cheat, steal, deceive, manipulate, destroy property or attack people. But few of us think that the prohibitions against such actions are absolute. Commonsense morality holds that such actions are permissible in self-defence or in defence of others (even if the law doesn’t always agree). You may lie to the murderer at the door. You may smash the windows of the would-be kidnapper’s car. You may kill the would-be rapist.

Here’s a philosophical exercise. Imagine a situation in which a civilian commits an injustice, the kind against which you believe it is permissible to use deception, subterfuge or violence to defend yourself or others. For instance, imagine your friend makes an improper stop at a red light, and his dad, in anger, yanks him out of the car, beats the hell out of him, and continues to strike the back of his skull even after your friend lies subdued and prostrate. May you use violence, if it’s necessary to stop the father? Now imagine the same scene, except this time the attacker is a police officer in Ohio, and the victim is Richard Hubbard III, who in 2017 experienced just such an attack as described. Does that change things? Must you let the police officer possibly kill Hubbard rather than intervene?

Most people answer yes, believing that we are forbidden from stopping government agents who violate our rights. I find this puzzling. On this view, my neighbours can eliminate our right of self-defence and our rights to defend others by granting someone an office or passing a bad law. On this view, our rights to life, liberty, due process and security of person can disappear by political fiat – or even when a cop has a bad day. In When All Else Fails: The Ethics of Resistance to State Injustice (2019), I argue instead that we may act defensively against government agents under the same conditions in which we may act defensively against civilians. In my view, civilian and government agents are on a par, and we have identical rights of self-defence (and defence of others) against both. We should presume, by default, that government agents have no special immunity against self-defence, unless we can discover good reason to think otherwise. But it turns out that the leading arguments for special immunity are weak.

Some people say we may not defend ourselves against government injustice because governments and their agents have ‘authority’. (By definition, a government has authority over you if, and only if, it can oblige you to obey by fiat: you have to do what it says because it says so.) But the authority argument doesn’t work. It’s one thing to say that you have a duty to pay your taxes, show up for jury duty, or follow the speed limit. It is quite another to show that you are specifically bound to allow a government and its agents to use excessive violence and ignore your rights to due process. A central idea in liberalism is that whatever authority governments have is limited.

Others say that we should resist government injustice, but only through peaceful methods. Indeed, we should, but that doesn’t differentiate between self-defence against civilians or government. The common-law doctrine of self-defence is always governed by a necessity proviso: you may lie or use violence only if necessary, that is, only if peaceful actions are not as effective. But peaceful methods often fail to stop wrongdoing. Eric Garner peacefully complained: ‘I can’t breathe,’ until he drew his last breath.

Another argument is that we shouldn’t act as vigilantes. But invoking this point here misunderstands the antivigilante principle, which says that when there exists a workable public system of justice, you should defer to public agents trying, in good faith, to administer justice. So if cops attempt to stop a mugging, you shouldn’t insert yourself. But if they ignore or can’t stop a mugging, you may intervene. If the police themselves are the muggers – as in unjust civil forfeiture – the antivigilante principle does not forbid you from defending yourself. It insists you defer to more competent government agents when they administer justice, not that you must let them commit injustice.

Some people find my thesis too dangerous. They claim that it’s hard to know exactly when self-defence is justified; that people make mistakes, resisting when they should not. Perhaps. But that’s true of self-defence against civilians, too. No one says we lack a right of self-defence against each other because applying the principle is hard. Rather, some moral principles are hard to apply.

However, this objection gets the problem exactly backwards. In real life, people are too deferential and conformist in the face of government authority. They are all-too-willing to electrocute experimental subjects, gas Jews or bomb civilians when ordered to, and reluctant to stand up to political injustice. If anything, the dangerous thesis – the thesis that most people will mistakenly misapply – is that we should defer to government agents when they seem to act unjustly. Remember, self-defence against the state is about stopping an immediate injustice, not fixing broken rules.

Of course, strategic nonviolence is usually the most effective way to induce lasting social change. But we should not assume that strategic nonviolence of the sort that King practised always works alone. Two recent books – Charles Cobb Jr’s This Nonviolent Stuff’ll Get You Killed (2014) and Akinyele Omowale Umoja’s We Will Shoot Back (2013) – show that the later ‘nonviolent’ phase of US civil rights activism succeeded (in so far as it has) only because, in earlier phases, black people armed themselves and shot back in self-defence. Once murderous mobs and white police learned that black people would fight back, they turned to less violent forms of oppression, and black people in turn began using nonviolent tactics. Defensive subterfuge, deceit and violence are rarely first resorts, but that doesn’t mean they are never justified.

When All Else Fails: The Ethics of Resistance to State Injustice (2018) by Jason Brennan is published via Princeton University Press.Aeon counter – do not remove

This article was originally published at Aeon and has been republished under Creative Commons.

Public Thinker: Issa Kohler-Hausmann on Misdemeanors and Mass Incarceration

Issa-Kohler-Hausmann

This article was originally published by Public Books and is reprinted here with permission.

Thinking in public demands knowledge, eloquence, and courage. In this new interview series, we hear from public scholars about how they found their path and how they communicate to a wide audience.

While most critics of the American criminal justice system condemn mass incarceration, fewer have turned a critical eye to practices that result in punishment other than imprisonment. In Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing, Issa Kohler-Hausmann argues that we must understand non-carceral policing and punishment in order to fully appreciate the reach of the American criminal justice system.

She focuses on the rapid expansion of these practices in New York City during the early 1990s, following the introduction of a new policing regime targeting allegedly disorderly conditions throughout the city. While felony cases had outpaced misdemeanor ones in the city’s criminal courts prior to the implementation of this regime, misdemeanors—and especially crimes like possessing marijuana or jumping the subway turnstiles—increased dramatically and far outpaced felonies from the mid-1990s to the present.

This growth in misdemeanor arraignments, Kohler-Hausmann observes, has produced a new model of criminal law administration. Rather than turning on questions of guilt or innocence, the “managerial model” uses criminal records, procedural hassles, and behavioral evaluation to achieve social control over the tens of thousands of people annually ensnared by the city’s misdemeanor courts. These practices disproportionately burden low-income communities of color, but imprisonment or even formal convictions are rare.

Kohler-Hausmann is an associate professor of law and sociology at Yale University. In May, we met at a café near Washington Square Park to discuss her new book, the legacy of Broken Windows policing, and the politics of criminal justice reform. The interview lasted an hour and has been significantly edited for length, clarity, and precision.


Jackson Smith (JS): Most of the infractions adjudicated in “misdemeanorland” are not violent, but violent crime does appear to haunt misdemeanorland. As you note in the book, it is at the core of the Broken Windows theory of policing. Could you speak to how conceptions of violent crime shape misdemeanorland, even if violent crime is not what is being adjudicated there?

Issa Kohler-Hausmann (IK): Haunting is a great way of putting it. Violent crime haunts misdemeanorland in a couple of ways. First, policing is concentrated in spaces with more crime. The police will always say that and they are mostly right. I don’t think that necessarily answers the fairness question, or the justice question, but let’s just say for the sake of argument that this is true. The important thing to remember is that what Broken Windows policing is doing is essentially casting a very, very wide net over those spaces and essentially asking everyone who is hauled in to prove that they are not a bad guy. It feels acceptable to have this vast dragnet, because we essentially think it is fair to put the burden on the people who live in high-crime neighborhoods to prove that they are not high-crime people. This is acceptable because they are black and brown people.

The other point is that people will ask, “Well, isn’t it true that this policing diminished serious crime in New York?” The answer is that nobody knows and certainly nobody knows the magnitude and the extent to which this may be true. You also have to think about the mechanism for reducing crime. Is it by virtue of bringing in a lot of people for misdemeanors? By definition, somebody who is arrested for a misdemeanor is not arrested for a felony. If they stopped you for smoking weed and found a gun on you, your top arrest card would be a felony, not a misdemeanor.

The idea is to arrest a lot of people who might grow up to be serious felons, but the mechanism has always been a little unclear to me. The data that I show in the book is that very few of the people arrested for misdemeanors end up with a violent felony conviction after a number of years. This is unsurprising given that we were arresting 100,000–150,000 people at the height of it—that would be a lot of people who would become serious felons.

JS: The first part of your book outlines how and why misdemeanor arraignments reached those peaks of 100,000–150,000 per year in New York City during the 1990s. You trace what you call the “managerial model” of criminal court adjudication back to the rise of Broken Windows policing, but also to the limits of the due process revolution. What can the rise of mass misdemeanors tell us about the unintended consequences of such policy reforms?

IK: What is interesting about misdemeanorland is that the whole thing was sort of unintended, but there were theoretical tenets that underspinned the Broken Windows policing experiment. First, the theory says that people inherently care about disorder, and they might care about it just as much as—if not more than—serious violent crime. Second, it says that there is a developmental sequence between tolerating low-level disorder and the conditions under which serious street crime and violent crimes flourish. The claim is that if you enforce basic norms of civility, people will not think that they have a license to do very serious things.

But no one seemed to give any thought whatsoever to what would happen if you essentially doubled the volume of human bodies moving through a system that is supposed to do adjudicatory work. This system is charged with using the pretty finicky rules of criminal procedure that were established in the due process revolution. It turns out those processes are costly. They involve using resources and time, and people are always going to look for ways not to use resources and time—especially if they are overburdened.

So it was interesting to me to not see any real forethought as to what might happen or even what should happen to these cases. I have not seen anyone write about people who piss on the sidewalk, jump the turnstile, take candy bars from bodegas, walk into buildings that they are not authorized to walk into, or have small amounts of narcotics or marijuana. The people charged with actually doing something with these cases had to make a series of adjustments. They had to solve a series of problems—basically, what do I do with all these cases when I can’t actually adjudicate them? I can’t actually use the rules of criminal procedure to properly figure out if this person did in fact piss on the sidewalk, jump the turnstile, take the candy bar from the bodega, or push or harm or strangle or threaten to hurt this person. It turns out that instead of figuring out if it happened in the past, they could use a series of tools to try to figure out if they think it is likely to happen again in the future.

JS: That temporal orientation is very interesting to me. The penal law looks backwards, as you note in the book, but the “managerial model” evaluates a defendant’s future behavior. This struck me as consistent with the temporality of policing, which also looks forward to essentially safeguard public order. Did the increase in misdemeanor arrests entail a “police-ification” of the lower criminal courts? To what extent does policing dictate the terms of engagement in misdemeanorland?

IK: This is why I spent extended time in the first part of the book talking about the logic of Broken Windows policing. The “managerial model” was an acceptable solution to the daily problems faced by legal actors, because it was quite contiguous with and complementary to the policing model that generated it. It is an ingenious set of answers for dealing with all those cases in a way that did not create conflict with the organization sending you all those cases. It actually vindicated the very logic of that organization. For example, you are a young black man in a high-crime neighborhood, you are smoking weed, or maybe I just put my hands in your pocket and found weed. I don’t know what you are up to, so I demand that you come into this space and prove to me that you are not up to no good. That logic is entirely consistent with the policing model, as you said.

JS: I want to switch directions now to discuss the role of fees and fines in misdemeanorland, as my own research concerns the role of money in what you call “non-carceral criminal justice encounters.” There is a popular understanding that fees and fines reveal a hidden profit motive. Your research complicates that narrative, however, because the immense volume of misdemeanor arraignments also entails an immense public cost. It costs a lot of money to cast that very wide net. Moreover, the lack of public resources apportioned to misdemeanor courts casts doubt on this idea that fees and fines are purely motivated by profit—the costs appear to outpace any revenue generated. In lieu of a profit motive, what can your concepts of “procedural hassle” and “performance” tell us about the logic of misdemeanor fees and fines? Is there something like an austerity logic operative here, such that defendants and their communities are made to bear the costs and responsibilities for their own punishment?

IK: The symbolic logic of profit might be there, but that doesn’t mean it is effective. It is very important to realize this disconnect. That is not to say that it is not punitive, unfair, and burden-shifting. It is certainly a regressive tax on the poorest communities, because the most heavily policed places are where you are going to find infractions like dogs not wearing a leash and public consumption of alcohol, because it is exactly in those places that you have the most police officers wandering around seeing those things. As we know, there is a hell of a lot of Sauvignon Blanc sipping in Prospect Park and very few summonses being issued there. But I think you are right to question this fiscal motive.

As the name of a great article says, you can’t get blood from a stone.[1.See Alexes Harris, Heather Evans, and Katherine Beckett, “Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States,” AJS, vol. 115, no. 6 (May 2010).] The number one conviction in New York City for decades has been disorderly conduct. Disorderly conduct entails a mandatory court surcharge of $120. I would be shocked if more than 30 percent can or do pay it. If you refuse to pay and there is a finding that you are willfully refusing to pay, you could be subject to jail time, but usually what happens is that civil judgment is entered and civil judgment basically just ruins people’s credit. What we are essentially doing is ruining the credit of people who are already impoverished. It is a really stupid thing to do, but it is not successfully getting blood from a stone. We are saying, “We’re not going to pay for courts; you have to pay for them.” But we end up entangling people in a web of debt, a web of being out-of-compliance with legal rules and orders. We push you further outside the boundary of civic inclusiveness and make you an outlaw, make you out of compliance, and express that you are not a deserving taker of state services. You are a special type of person that does not even deserve the standard things of the state.

JS: Many of the problems in misdemeanorland that you identify throughout your book stem from the outsized power of prosecutors, so I am curious what you make of the nationwide movement to elect progressive prosecutors in local jurisdictions. Do you see it having any impact on what happens in misdemeanorland?

IK: What I say about prosecutors is a line I read somewhere about it being more power than a bad man should have or a good man should want. Once people are given power they tend to think they are the right ones to have it. Very few people in power think, “You know what, I should have some of my discretion taken from me.”

Take [New York County District Attorney] Cy Vance. Here is a guy who for years had probably the most punitive offer policies in the five boroughs. According to my estimates, you had a higher probability of being convicted and going to jail for turnstile jumping in Manhattan than in any other borough. He is now claiming that he will decline to prosecute those cases, which is great. But he is fighting tooth and nail against discovery reform, which would actually give leverage to the other side. In terms of legal reform, we need to give more leverage points to defense attorneys. Prosecutors who fight against that don’t get to call themselves progressive.

Having said that, does the view of the person in power matter? Of course it matters, so I am happy that there is light on this because, as we know, district attorney races have been largely uncontested.

JS: On that note, what is your appraisal of the broader movement for criminal justice reform?

IK: I am often leery of our newfound alliance with the Right on Crime people. What we have in places like Brownsville is the thoroughly anticipated upshot of hundreds of years of racial injustice and a deeply unequal economic system that actually does not care about people who have been left behind. What we need is a huge investment in fundamentally rupturing intergenerational poverty. That is where we are going to part ways with the Right on Crime people, because it is not going to be cheaper and might even be more expensive. Ultimately, we need a Marshall Plan for the ghetto. We need to be willing to put in massive amounts of resources into addressing the very real social problems in many of the heavily policed spaces.

Crime is a real problem because violence disproportionally affects the most vulnerable communities, mainly low-income and minority communities. Violence is a terrible intergenerational harm, and we need to start by recognizing that. But that is why we need to simultaneously be fighting for distributive justice, a union movement, school reform, and the basic social good. Because those are social controls, they are just the benign ones that we think are good.

 

This article was commissioned by Caitlin Zaloom.

Chaim Saiman on Halakhah

Chaim Saiman Halakhah book coverThough typically translated as “Jewish law,” the term halakhah is not an easy match for what is usually thought of as law. In his panoramic book Halakhah: The Rabbinic Idea of Law, Chaim Saiman traces how generations of rabbis have used concepts forged in talmudic disputation to do the work that other societies assign not only to philosophy, political theory, theology, and ethics but also to art, drama, and literature. Guiding readers across two millennia of richly illuminating perspectives, this book shows how halakhah is not just “law,” but an entire way of thinking, being, and knowing.

What is halakhah and why did you decide to write a book about it?

Literally, halakhah means “the way” or “the path,” though it is typically translated as Jewish law.

I grew up in a home and community where I was expected not only to obey the law, but to study and master complex legal texts in Hebrew and Aramaic.

I was about eight years old when my father proceeded to pull out two massive tomes from the shelf and inform me that I had to learn with him before I could escape to the Nintendo console located in my friend’s basement. We began to study the section of Mishnah (the earliest code of Jewish law, from around the year 200 CE) detailing the responsibilities of different bailees—those who watch over the property belonging to someone else. This book is a grown-up attempt to answer why an eight-year-old should care about bailees and the ancient laws of lost cows.

Did you really start a book on Jewish law with Jesus?

Yes. I take Jesus and the Apostle Paul as some of the earliest in a long line of halakhah’s critics. Both lived before the tradition crystallized in the form of the Mishnah. Yet even at this early stage, Jesus pokes fun at the Mishnah’s forebears for obsessing over legal rules and formalities at the expense of true spiritual growth. Jesus would have most likely considered it a bad idea to initiate young children into religious life by analyzing the laws of bailments.  But whereas Jesus saw the law as a set of regulations and restrictions, the Talmudic rabbis understood it as a domain of exploration and study, a process they called Talmud Torah.

 What is Talmud Torah?

It is hard to translate, mainly because the idea does not exist in Western or American culture. Word-for-word it means the “study of Torah,” but its impact extends beyond what is usually thought of as “study.” Talmud Torah means that Torah is not studied merely for pre-professional reasons, and not (only) to know the rules relevant to living a Jewish life, but because it is a primary religious activity, an intimate spiritual act that brings the learner into God’s embrace.

The closest analogy in general culture is the idea once practiced at elite universities when the curriculum was focused on Greek, Latin, philosophy, ancient civilization, and classical literature. Unlike today, the goal was not to make students more attractive to employers, but to educate them into ennobled citizens who would fully realize their humanity. The rabbis had a similar idea, but rather than literature or philosophy, study was grounded in the divine word of the Torah, and especially the legal regulations set forth in the Mishnah and Talmud.

What does Talmud Torah have to do with law?

Though Talmud Torah arguably applies to any area of Jewish law and thought, longstanding tradition places special emphasis on the areas that correspond to contract, tort, property and business law—the very topics covered by secular legal systems.  According to the Talmudic rabbis, the subjects taught in law schools across the country become a spiritual practice when learned in the halakhic setting. Lawyers get many adjectives thrown their way, but godly is rarely one of them. The book aims to understand what it means to hold that legal study is a path to the divine, and what are the implications of this idea for a legal system.

Is halakhah the law of any country?

Not really. One of the unusual aspects of halakhah is that it first becomes visible in the Mishnah several generations after the independent Jewish state was dismantled by the Romans. Further, the most fertile periods of halakhic development took place when Jews did not govern any territory but lived as a minority under non-Jewish rule. This is the opposite from how legal systems typically develop.

From at least the Middle Ages through the nineteenth century, Jews tended to live in tight communities whose internal legal affairs were heavily influenced by rabbis and halakhah. But even here, close investigation shows that the civil laws that applied often deviated from Talmudic rules studied under the rubric of Talmud Torah. In the case of civil law there were effectively two systems of Jewish law. One used by tribunals when disputes arose in practice, and the other that lived mainly on the pages of the Talmud and realized though Torah study.  The relationship between these two forms of halakhah is a central theme of the book.

What about the state of Israel?

One of the ironies of modern Jewish life is that while Judaism historically defined itself through devotion to law, when the state of Israel was established there was little consensus about the role of halakhah in the state. Israel’s Socialist Zionist founders saw halakhah as a relic of the outmoded European Judaism that had to be overcome before a modern, Zionist, and self-determined Judaism could take hold. Most observant Jews by contrast, viewed secular Zionism as religiously invalid, if not dangerous. Since their primary concern was maintaining halakhah’s integrity in a secularizing world, they had little interest in adapting it for use in the modern state. Hence with the exception of marriage and divorce law, halakhah was not reflected in early Israeli law.

But the ground has shifted in the intervening years. Though Israeli law remains distinct from halakhah, there is a much wider constituency today that looks to define Israel as a Jewish state where concepts and norms inspired by halakhah find expression in state law. The book’s final chapter discusses the possibilities and pitfalls of infusing state law with halakhah.

Chaim N. Saiman is professor in the Charles Widger School of Law at Villanova University. He lives with his wife and three daughters in Bala Cynwyd, Pennsylvania.

James Q. Whitman: Why the Nazis studied American race laws for inspiration

Hitler's American ModelOn 5 June 1934, about a year and half after Adolf Hitler became Chancellor of the Reich, the leading lawyers of Nazi Germany gathered at a meeting to plan what would become the Nuremberg Laws, the centrepiece anti-Jewish legislation of the Nazi race regime. The meeting was an important one, and a stenographer was present to take down a verbatim transcript, to be preserved by the ever-diligent Nazi bureaucracy as a record of a crucial moment in the creation of the new race regime.

That transcript reveals a startling fact: the meeting involved lengthy discussions of the law of the United States of America. At its very opening, the Minister of Justice presented a memorandum on US race law and, as the meeting progressed, the participants turned to the US example repeatedly. They debated whether they should bring Jim Crow segregation to the Third Reich. They engaged in detailed discussion of the statutes from the 30 US states that criminalised racially mixed marriages. They reviewed how the various US states determined who counted as a ‘Negro’ or a ‘Mongol’, and weighed whether they should adopt US techniques in their own approach to determining who counted as a Jew. Throughout the meeting the most ardent supporters of the US model were the most radical Nazis in the room.

The record of that meeting is only one piece of evidence in an unexamined history that is sure to make Americans cringe. Throughout the early 1930s, the years of the making of the Nuremberg Laws, Nazi policymakers looked to US law for inspiration. Hitler himself, in Mein Kampf (1925), described the US as ‘the one state’ that had made progress toward the creation of a healthy racist society, and after the Nazis seized power in 1933 they continued to cite and ponder US models regularly. They saw many things to despise in US constitutional values, to be sure. But they also saw many things to admire in US white supremacy, and when the Nuremberg Laws were promulgated in 1935, it is almost certainly the case that they reflected direct US influence.

This story might seem incredible. Why would the Nazis have felt the need to take lessons in racism from anybody? Why, most especially, would they have looked to the US? Whatever its failings, after all, the US is the home of a great liberal and democratic tradition. Moreover, the Jews of the US – however many obstacles they might have confronted in the early 20th century – never faced state-sponsored persecution. And, in the end, Americans made immense sacrifices in the struggle to defeat Hitler.

But the reality is that, in the early 20th century, the US, with its vigorous and creative legal culture, led the world in racist lawmaking. That was not only true of the Jim Crow South. It was true on the national level as well. The US had race-based immigration law, admired by racists all over the world; and the Nazis, like their Right-wing European successors today (and so many US voters) were obsessed with the dangers posed by immigration.

The US stood alone in the world for the harshness of its anti-miscegenation laws, which not only prohibited racially mixed marriages, but also threatened mixed-race couples with severe criminal punishment. Again, this was not law confined to the South. It was found all over the US: Nazi lawyers carefully studied the statutes, not only of states such as Virginia, but also states such as Montana. It is true that the US did not persecute the Jews – or at least, as one Nazi lawyer remarked in 1936, it had not persecuted the Jews ‘so far’ – but it had created a host of forms of second-class citizenship for other minority groups, including Chinese, Japanese, Filipinos, Puerto Ricans and Native Americans, scattered all over the Union and its colonies. American forms of second-class citizenship were of great interest to Nazi policymakers as they set out to craft their own forms of second-class citizenship for the German Jewry.

Not least, the US was the greatest economic and cultural power in the world after 1918 – dynamic, modern, wealthy. Hitler and other Nazis envied the US, and wanted to learn how the Americans did it; it’s no great surprise that they believed that what had made America great was American racism.

Of course, however ugly American race law might have been, there was no American model for Nazi extermination camps. The Nazis often expressed their admiration for the American conquest of the West, when, as Hitler declared, the settlers had ‘shot down the millions of Redskins to a few hundred thousand’. In any case extermination camps were not the issue during the early 1930s, when the Nuremberg Laws were framed. The Nazis were not yet contemplating mass murder. Their aim at the time was to compel the Jews by whatever means possible to flee Germany, in order to preserve the Third Reich as a pure ‘Aryan’ country.

And here they were indeed convinced that they could identify American models – and some strange American heroes. For a young Nazi lawyer named Heinrich Krieger, for example, who had studied at the University of Arkansas as an exchange student, and whose diligent research on US race law formed the basis for the work of the Nazi Ministry of Justice, the great American heroes were Thomas Jefferson and Abraham Lincoln. Did not Jefferson say, in 1821, that it is certain ‘that the two races, equally free, cannot live in the same government’? Did not Lincoln often declare, before 1864, that the only real hope of America lay in the resettlement of the black population somewhere else? For a Nazi who believed that Germany’s only hope lay in the forced emigration of the Jews, these could seem like shining examples.

None of this is entirely easy to talk about. It is hard to overcome our sense that if we influenced Nazism we have polluted ourselves in ways that can never be cleansed. Nevertheless the evidence is there, and we cannot read it out of either German or American history.Aeon counter – do not remove

James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. His books include Harsh Justice, The Origins of Reasonable Doubt, and The Verdict of Battle. He lives in New York City. His forthcoming book, Hitler’s American Model, is out in March from Princeton.

This article was originally published at Aeon and has been republished under Creative Commons.

The Law is a White Dog author Colin Dayan debunks the rationality of law

What do abused dogs, prisoners tortured in Guantánamo and supermax facilities, and slaves killed by the state have in common? They have all been deprived of their personhood by the law. In The Law is a White Dog, Colin Dayan shows how the law can be used to dehumanize and marginalize, even as it upholds civil order. Dayan puts the topic in historical context, showing how these issues are still prevalent today. In an interview with WFHB Indiana, the author speaks to recent instances of police brutality. Listen for a fresh take on a a timely issue.
Dayan

David Kennedy on remaking our technocratic world

KennedyIn today’s world, expert opinion is particularly revered in political and economic life. But as experts engage one another on a terrain of irresolvable argument, a world of astonishing injustice and inequality is born.  David Kennedy’s new book, A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy draws on his personal experience working with international lawyers, human rights advocates, and an array of humanitarian strategists. The book reveals the power struggle occurring between those who have a stranglehold on the knowledge and those who don’t, arguing that expertise can be used to promote justice rather than inequality. Recently, Kennedy agreed to answer a few questions about his book.

Why a world of “struggle?”

DK: In this book, I try to reframe the international situation less as order or system than as a continual struggle, hence the title, A World of Struggle. When speaking about international affairs, the social sciences often start with conflict – a Hobbesian state of nature or the competitive market of Adam Smith – and then work to explain how things nevertheless turn out well ordered: through a “balance of power” or “invisible hand.” In my picture, thousands of conflicts undertaken by all sorts of people at once generate the world we live in, including terribly unjust things it seems impossible to change. Struggle and conflict are more prevalent and constitutive of our everyday world than we realize.

You write about knowledge and expertise – aren’t economic and military power more important in global struggle?

DK: It’s true, I am particularly interested in the role of ideas. I do think they’re more important than we realize. Although we think of international affairs as an arena of raw power, a great deal is argument and assertion. People drop bombs to “send messages” and transform economic power into a better deal through negotiation. In the shadow of coercion more often than through force.

People in places like Davos or Washington tell lots of stories about the world: stories about what an economy is, what politics can accomplish, about the limits and potential of law. Their stories make some problems visible, some actors central – and others invisible. The technical work people undertake as they struggle in the shadow of these stories arranges the world, distributing wealth, status and opportunity. In the book, I examine big ideas about things like economic development, international law or world trade to understand how they frame and fuel everyday battles for advantage among businessmen, bureaucrats, politicians and citizens.

Are experts too important in world affairs? Lots of people criticize the European Union, for example, as “technocratic” and decry the “democracy deficit.”

DK: Our world is a technocratic one. Experts have lots of authority and it is difficult to change things without speaking their language. And, as we all know, technocratic language is as prone to irrationality, confusion and conflicting objectives as any other. But “expertise” is not the exclusive province of specialists and professionals. All of us, from politicians, to entrepreneurs, to activists speak some vulgate version of languages once owned more exclusively by “experts.” As a result, it is not so clear there is a “political” or “democratic” alternative once democracy and rulership have themselves become technocratic practices.

To me, the problem is not experts run rampant, displacing more appropriate political, ethical or commercial ways of thinking. The problem is all of us – our human capacity for responsible decision and political engagement has been dulled. Or perhaps, like professional talking heads, we’ve all embraced the reassuring comfort of thinking we “know,” rather than face the anxiety of having to choose.

How does your work fit into the literature about “expertise?”

DK: Other studies of “expertise” focus on what makes expert knowledge distinctive. I focus on the continuities between their work and that of many others. Expert knowledge is human knowledge: a blend of conscious, semiconscious and wholly unconscious ideas, full of tensions and contradictions, inhabited by people who thing, speak and act strategically. If you think “expertise” is distinct from politics, you will worry about keeping experts and political leaders in their respective places. At the global level, this constitutional concern is less pressing because there is no constituted political alternative. It really is expertise all the way down. As a result, I worry less about the proper boundaries for expert knowledge and focus instead on the how of expert rule: the modes of public reasoning that arise where practices of power and the articulation of ideas intersect.

What about law? How important is law in world affairs?

DK: Very. People struggle over legal arrangements because they matter. The domain outside the nation is neither an anarchic political space nor a domain of market freedom immune from regulation. The basic elements of global economic and political life – capital, labor, credit, money and liquidity, as well as sovereignty and right – are creatures of law which could be put together in lots of ways. We forget how strange it is that if you own something here, you also own it when you get off the plane elsewhere. Yet, as businessmen and military leaders well know, our international world is the product of intense and ongoing projects of regulation and institutional management. A global production chain is a complex set of legal arrangements, cross-cut by all kinds of formal and informal norms, public and private regulation. Small changes in the rules can shift who wins and who loses.

Law is often at struggle because it distributes: allocating and protecting gains from economic activity or political conflict. Law is also a tool of struggle: I claim a legal privilege to put you out of business; you claim the legal authority to prevent me from combining with rivals to do so. I claim the right to overfly your territory or protect your minorities – or you claim the right to shoot down my plane and attack my humanitarian convoy.

Although we think of law as a source of order – the “legal order” – or as a vocabulary for criticizing government – as with human rights — I focus on the distributive role of law and the resulting push and pull about what it means and how it should operate.

Law does seem to be everywhere today – what has fueled its expansion?

DK: The ubiquity of law owes less to lawyers than to the appetite all kinds of people have for a common and malleable language of engagement. As law has become ever more diverse or plural, it has also become more prevalent. Law’s malleability both encourages people to assert their interests as legal rights – even when their interests are opposed – and opens numerous paths for settlement. The legal vocabulary today is widely available for both ethnical assertion and strategic pragmatism. In this, modern law is typical of many sophisticated expert practices: those who use it do so with a strange blend of confidence and disenchantment. Unfortunately, in the process, people can lose their ethical moorings: that, I believe, is the triumph and tragedy of global rule by expertise.

You offer “modern law and modern war” as an example of the contemporary powers and tragic consequences of expertise. What’s different now?

DK: Warfare has become ever more entangled with law as law has lost its distinctive clarity. Law now shapes the institutional, logistical and physical landscape of war and the battlespace has become as legally saturated as the rest of modern life. At the same time, law has become more malleable, the doctrinal materials used to distinguish war and peace or legal and illegal state violence ever more fluid. No longer a matter of clear rules and sharp distinctions, international law speaks with many voices. As it has become a more plastic medium, law has enabled a strategic management of war’s boundaries – when war ends, when it starts, what damage is collateral and what not. It now offers everyone a vocabulary for marking legitimate power and justifiable death. People everywhere can find reason to affirm their cause and decry the perfidy of their opponent.

When things go well, modern law can provide a framework for talking across cultures about the justice and efficacy of wartime violence. More often, the modern partnership of war and law leaves all parties feeling their cause is just and no one feeling responsible for the deaths and suffering of war. Law and war have become oddly reciprocal, communicating and killing along the boundaries of the world system, at once drenched in the certainty of ethics and detached from the responsibility of politics.

You end on an optimistic note – that people could pull back the dysfunctions of expert rule.

DK: I certainly hope they might. It would require inhabiting our expertise in a new way, less as pragmatic and sophisticated strategic actors than as people for whom, as Max Weber once wrote, politics is a vocation: with passion, with proportion and with responsibility in an irrational world that cannot be known or predicted. My proposal is not an escape from expertise or institutional recipe for its better use. It is a habit of mind, a personal and professional practice, to harness a long tradition of heterodox intellectual and political work to change the world. And to cultivate the ethical possibility of acting when we realize we do not know.

David Kennedy is the Manley O. Hudson Professor of Law and Director of the Institute for Global Law and Policy at Harvard Law School. He is the author of The Rights of Spring: A Memoir of Innocence Abroad; Of War and Law; and The Dark Sides of Virtue: Reassessing International Humanitarianism, and the editor of The Canon of American Legal Thought (with William Fisher) (all Princeton). His most recent book is A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy.

How Texas law will shape the women’s vote

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The Explosive Potential of the Whole
Woman’s Health Case

by Nancy Woloch

On March 2 the Supreme Court will hear arguments about a 2013 Texas law that affects access to abortion. The law at issue in Whole Woman’s Health v. Cole requires doctors who perform abortions to have admitting privileges at a nearby hospital (no more than thirty miles from the clinic). It also requires abortion clinics to have facilities equivalent to those at an outpatient surgical center, that is, more equipment than Texas law demands in doctors’ offices where more hazardous procedures such as colonoscopies or liposuctions are performed. The rise of the Whole Woman case just as an election looms may provoke voters in ways unsought by sponsors of the Texas law.

Several Texas clinics challenged the law, but a federal appeals court, the Fifth Circuit, upheld the new requirements. The Supreme Court now faces several questions: Does the law protect women’s health, as Texas claims? Does the law impose an “undue burden” on women who seek abortions? The “undue burden” consideration arose in Planned Parenthood v. Casey (1992), which confirms the right to abortion set forth in Roe v. Wade (1973). A law can be an undue burden, states the Casey decision, if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” It is likely that the Supreme Court, when it reviews the Texas case, will further explicate “undue burden,” “substantial obstacle,” and, especially, “purpose or effect.”

Texas claims that it has “wide discretion” to pass medical regulations, that it enacted the 2013 law to protect the health of those who seek abortions, that the law ensures qualified doctors, and that it cuts delay if a patient needs a hospital. The clinics contend that the state requirements were not designed to promote women’s health, that the law is a tactic to close clinics, and that it imperils women’s health by “reducing access to safe and legal abortion.” Since 2013, critics of the law charge, the 42 clinics that once provided access to abortion in Texas now number nineteen and would dwindle to ten if the law survives review. Amicus briefs that support the clinics have started to accumulate, including a brief by historians who work with legal issues. Laws that claim to protect women’s health can restrict women’s choice, the historians state, and thus “warrant careful scrutiny by this Court.” The Court will consider whether the Fifth Circuit decision reflects precedents in abortion law, as supporters of the Texas law claim, or whether the Fifth Circuit acted in error when it enabled Texas to enforce the new law, as its detractors argue.

The Whole Woman’s Health case, to be decided in June 2016, has explosive potential. The Supreme Court has not issued a major decision on abortion since Gonzales v. Carhart (2007), which upheld a federal law barring what is called “partial birth” abortion. The Whole Woman’s Health decision will affect the options of women in Texas, especially in rural Texas, who may find the right to an abortion out of reach. The decision will also affect women in Mississippi, where a kindred case, one that involves hospital admission requirements for doctors, has arisen and where only a single clinic that provides abortion remains. The Supreme Court has not yet decided whether to consider the Mississippi case, Currier v. Jackson Women’s Health Organization. The decision in Whole Woman’s Health, finally, will reach women in other states that have enacted abortion regulations similar to those in Texas, such as Wisconsin, Louisiana, and Alabama, and in states that intend to do so.

The Whole Woman’s Health decision will have further ramifications in an election year. Whichever way the Court may go—and there has no been signal as to what might happen—the conflict over the Texas law is likely to sway the women’s vote. The reappearance of a major abortion case will remind undecided women voters that state legislators, who are likely to be men (in Texas the lawmakers of 2013 were 80 percent male), can voice opinions that have an impact on women’s health – or even act to impede women’s rights under the pretext of protecting women’s health. Similarly, the Texas case will remind women voters of what a yet more conservative Supreme Court, with new members chosen by a future president, might decide. Overall, the case will prompt women voters to think about the fragility of women’s rights. Whatever happens in the Supreme Court, the timing of the Whole Woman’s Health decision may well advantage Democrats.

Woloch jacketNancy Woloch teaches history at Barnard College, Columbia University. Her books include A Class by Herself, Women and the American Experience and Muller v. Oregon: A Brief History with Documents.

An interview with Nancy Woloch, author of A Class by Herself

Nancy Woloch’s new book, A Class by Herself: Protective Laws for Women Workers 1890s-1990s, looks at the historical influence of protective legislation for American women workers, which served as both a step toward modern labor standards and as a barrier to equal rights. Recently, Nancy took the time to answer some questions about the book, her reasons for writing it, and the modern day legacies of this legislation, from pregnancy law, to the grassroots movement to raise the minimum wage.

Woloch jacketWhy did you write this book?

NW: Conflict over protective laws for women workers pervades twentieth-century US women’s history. These laws were everywhere. Since the early 1900s, almost every state enacted some sort of women-only protective laws—maximum-hour laws, minimum wage laws, night work laws, factory safety laws. Wherever one turns, the laws spurred debate, in the courts and in the women’s movement. Long drawn to the history of these laws and to the arguments that they generated, I saw the opportunity to carve out a new narrative: to track the rise and fall of protective laws from their roots in progressive reform to their collapse in the wake of Title VII of the Civil Rights Act of 1964, and beyond. Here was a chance to fuse women’s history and legal history, to explore social feminism, to reconstruct a “constitutional conversation,” and to ferret around all the topics that protective laws touch — from transatlantic connection to social science surveys to the rise of equal rights. Above all, the subject is contentious. Essentially, activist women disrupted legal history twice, first to establish single-sex protective laws and then to overturn them. This was irresistible.

What is your book’s most important contribution?

NW: My book shows the double imprint that protective laws for women workers left on US history. The laws set precedents that led to the Fair Labor Standards Act of 1938 and to modern labor law, a momentous achievement; they also sustained a tradition of gendered law that abridged citizenship and impeded equality until late in the century.

Which groups of women activists first supported women-only protective laws?

NW: I focus on members of the National Consumers’ League, a pressure group formed in 1898 and led as of 1899 by reformer Florence Kelley. One of the most vibrant and successful reform organizations of the Progressive Era, the NCL enabled the campaign for protective laws to move forward. I also focus on the federal Women’s Bureau, started in 1920, which inherited the mission of the NCL: to preserve and promote protective laws. Other women’s associations, too, were involved; so were women labor leaders. But the NCL and the Women’s Bureau were most crucial. Women who promoted women-only protective laws endorsed a dual rationale: the laws would redress disadvantages that women faced in the labor force and provide “industrial equality”; they would also serve as an “entering wedge” to labor standard for all workers. The dual rationale persisted, with variations, for decades.

 How did you come up with the title?

NW: “A Class by Herself” is a phrase used by Justice David J. Brewer in Muller v. Oregon, the landmark Supreme Court decision of 1908 that upheld a state ten-hour law for women workers in factories and laundries. Woman, Justice Brewer stated, “is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained.” Two issues intersect in the Muller case: Can the state impose labor standards? Is classification by sex constitutional? The fusion of issues shapes my narrative.

The Muller case remains fascinating. I am stunned with the exceptional leverage that Florence Kelley grasped when she intervened in the final appeal of the case. I am struck with the link that Muller’s lawyers posited between employers’ interests and equal rights; with the fragile relationship between the famous Brandeis brief and the Brewer opinion; and with the way that Justice Brewer challenged Brandeis for dominance. I still ask myself: Who took advantage of whom? Looking back on Muller, I find an intriguing contrast between that case and the Supreme Court case that terminally rejected the Muller principle, UAW v. Johnson Controls (1991). This is when single-sex protective laws definitively expired. Johnson Controls also offers a counter-image of the 1908 case.

Did classification by sex ever help women workers?

NW: Yes, of course. Women-only state protective laws might provide benefits to women workers. In many instances, they provided shorter hours, higher wages, or better working conditions, just as reformers envisioned. But women-only laws always had built-in liabilities. Laws based on “difference” perpetuate difference. They entail hierarchy, stratification, and unequal power. They can quash opportunity, advancement, and aspiration. Once embedded in law, classification in sex might be adapted to any goal conjured up by lawmakers, or, as a critic in the 1920s pointed out, used to impose whatever restrictions “appeal to the caprice or prejudice of our legislators.”

What sort of challenges did you face as an author?

NW: Protective laws were tough customers. They fought back; they resisted generalization; they defied narrative. Part of the challenge was that I deal with a great mass of legislation –several hundred state laws — and each type of law followed its own trajectory. I also cover the laws and their ramifications over many decades. To estimate the impact of protective laws on women workers at any given time was a hazardous undertaking; one could not easily measure the negative effects, or what one critic called the “debit side.” Changing circumstances compound the problem; the effects of the laws were always in flux. Not least, protective laws generate controversy among historians; to tackle this subject is to stroll through a minefield. A special challenge: to cope with the end of protective laws in the 1960s and 1970s.

What was the biggest surprise you encountered in writing this book?

NW: The role of “surprise” itself was a surprise. Progressive reformers who promoted women-only labor laws in the early 1900s could not see around corners, anticipate shifts in the economy, or envision changes in the female work force. Nor could their successors or their opponents. Much of my narrative is a story of close calls and near misses, of false hopes and unexpected consequences, of accident and unpredictability. The theme of the unforeseen peaks with the addition of “sex” to Title VII of the Civil Rights bill of 1964; the impact of the amended Title VII on women-only protective laws was yet more of a surprise. I was surprised myself, as narrator, by the complexity of the downfall of protective laws. I was also surprised to discover the key role that “overtime” played in my story and the gradual mutation in its meaning over the decades.

Does your subject have present-day legacies?

NW: Definitely. In a sense, single-sex protective laws sank totally out of sight when they capsized in the 1970s. But in another sense, many facets of the history of protective laws reverberate; the echoes pervade current events. Labor standards are now a global issue, as illustrated in Bangladesh in 2012 and 2013. The fire in a garment factory on the outskirts of Dhaka that killed 117 workers, so reminiscent of the 1911 Triangle fire, and the yet more lethal collapse of an 8-story building, with garment production on its upper floors, underline the need for safety regulation everywhere. Closer to home, the drive to improve labor standards continues. Most recently, we have seen a grassroots movement to raise the minimum wage and efforts to revise federal law on the threshold for overtime. Reconciling work and parenthood impels discussion. Pregnancy law remains a challenge; enforcement of the Pregnancy Discrimination Act of 1978 has spurred more litigation than anyone expected. A recent case is Young v. United Parcel Service (2015). Beyond that, demands for compensated parental leave proliferate. President Obama’s proposal to fund parental leave, though unlikely to move forward right now, at least keeps the issue on the table. Finally, equal employment opportunity cases remain a challenge, from the Lily Ledbetter case of 2007 to the dismissed Wal-Mart case of 2011. Title VII, which catalyzed the end of single-sex protective law, turns out to be a work in progress.

Jacqueline Bhaba on Child Migration and Human Rights in a Global Age [VIDEO]

Why have our governments and societies been unable to effectively address the human rights and legal problems around the growing number of children who cross borders alone every year? How do we (and how should we) apply laws and policies designed for adult migrants to children and adolescents?

Distinguished human rights and legal scholar Jacqueline Bhabha has been studying complex ethical and legal questions such as these around immigration and children’s rights for over a decade and the results of her research may surprise you. Faculti Media recently posted this video of Bhabha discussing her work and her new book Child Migration and Human Rights in a Global Age:

New Political Science & Law Catalog

catalog cover

We invite you to check out new and forthcoming books in our political science & law catalog at:
http://press.princeton.edu/catalogs/politics11.pdf

Race and politics, immigration, public opinion, Tea Party, global rulers, ethics and zombies – just a few of the hot topics you will find in the catalog.
Yes, zombies!

If you’re at the APSA meeting in Seattle, stop by our booth no. 508 to say hello and browse new books. We hope to see you there.