Since September 2015, I’ve been working as a Research and Teaching Faculty member (now PhD candidates with teaching responsibilities) of Leiden University, the Netherlands and as part of my role, I’ve been reading a wide variety of academic papers.
I thought I would post some of the articles I’ve read, and found particularly interesting, through this post. Maybe you will enjoy reading them to.
I will briefly comment on the aspects of the paper that I found to be interesting. Obviously, for intellectual property considerations, I’ll only provide links to the full text of articles that are already available in the public domain. (Usually this is done through university repositories and SSRN]
- Feldman, Eric and Stein, Alison I., “Assuming the Risk: Tort Law, Policy, and Politics on the Slippery Slopes“ (2010). Faculty Scholarship. Paper 296. [Also published in Feldman, Eric and Stein, Alison I., “Assuming the Risk: Tort Law, Policy, and Politics on the Slippery Slopes”, DePaul Law Review, Volume 59, 2010, pp. 259-303]This was part of our required reading for International Tort Law during my LLM (Adv.) programme in International Civil and Commercial Law at Leiden University. I will be honest- aside from a few perilous journeys down a ski slope, I was largely unfamiliar with the ski industry before reading this article. Not only did I learn about how the ‘assumption of risk’ doctrine (a.k.a. volenti non fit injuria) historically developed in the USA, but I also became informed of how the ski industry works in Vermont and Colorado and how a nexus of factors influence the debate on assumption of risk in an inherently ‘risky’ activity: inter (and intra) state politics, the clout of large ski slopes, the leverage of insurance companies and, of course, landmark tort litigation. The article serves as a reminder of how strong the law and economics scholarship is in the US!
- GM Gulati, TMT Isaac and WA Klein, ‘When a Workers’ Cooperative Works: The Case of Kerala Dinesh Beedi‘, UCLA Law Review, Vol. 49, 2002, pp. 1417-1454.This is an article I just finished reading (04.02.2016) as part of my research into the internal administration of worker cooperatives. A lot of the literature (in English) on this topic concentrate on cooperatives in the Global North (i.e. Spain, USA, Italy, UK) with a relatively small number of academics studying those that exist in the Global South. In some ways, the latter group should be the locus of a rich vein of research. On the one hand, cooperatives in developing countries have suffered from endemic government interference, corruption, dearth of necessary cooperative education and training as well as the degenerative tendencies of many cooperatives: lack of a long-term orientation, intra-member conflicts over residual profit distribution, managerial impotence and shirking being just some of the observed problems. On the other hand, examples like the Kerala Dinesh Beedi cooperative(s) is a heartening example of how worker-controlled and managed firms can flourish in a capitalist economy.Let me first explain why it is so remarkable. Several cooperatives in India, and in the state of Kerala in particular, have failed due to government interference. Beedi, the product manufactured by these workers, is a cheap cigarette and the return per pack of Beedi is infinitesimally small. As a result, wages and working conditions in the industry are correspondingly abysmal, with regular media exposés of child labour being used. In such an industry, it is remarkable that the workers of such an industry were able to buy-out a Beedi manufacturer and establish a firm that has been a market leader in the production of Beedi since the mid-1960s, employs tens of thousands of heterogeneous member-workers, pays well above the industry standard (3 times in 2002) and has now diversified into other products. They were able to survive, even when their annual turnover was reduced by two-thirds!What the article reveals is the confluence of factors that allowed such a cooperative to survive the vicissitudes of competition, recession and falling demand for tobacco. By fleshing out the internal workings of the cooperative, from the shop floor worker to the central cooperative board of directors, we see that having ideologically dedicated and hard working directors and professional management, a slim management structure, mutual monitoring by workers, high product quality standards and high worker satisfaction can collectively contribute to a successful and long-lasting worker cooperative. The article is easy-to-read (I read a lot of it on the train between Leiden and Den Haag) and it provides delightful observations, like the practice of supervisors reading newspapers and stories to the shop floor workers as entertainment.
- The Straddler, David Ellerman in conversation with the Straddler, ‘Against the Renting of Persons’, Winter 2017, available online at: <http://www.thestraddler.com/201715/piece2.php> In this illuminating interview, Ellerman’s main argument is that we have moved from a system where people can be bought and sold to one where their hours can be rented. This commodification of people conflates rational man with things.He draws a comparison between employment contracts and voluntary contracts of slavery, as existed in the past, primarily as they both constitute contracts of alienation rather than delegation. In other words, these contracts apportion key decision making powers completely to employers/owners rather than being delegated selectively and conditionally. (Doesn’t matter if this is done voluntarily or not, so moving beyond discussion on coercion and consent) The basis of this factual and moral view of inalienability stems from the inalienability of conscience – that you cannot become less of a person even if you contract to do so. By extension, logically, you can’t fully alienate from yourself key decision making powers and responsibilities though the law previously enabled this in the context of slavery, marriage and employment and now does so only in the latter. This also entails the employer expropriating the lion’s share off the fruits of an employee’s labour (while also treating them as a distinct individual in the event that the employee becomes implicated in a crime or wrong doing!) Instead there should be a shift in the discourse towards a more democratic approach where these non absolute, selective powers are delegated conditionally within employee employer relations.This has to be done within member owned firms rather than as formally self employed persons as the latter will merely erode their hard fought protections with little or no benefit.
- Marleen A. O’Connor, ‘Promoting Economic Justice in Plant Closings: Exploring the Fiduciary/Contract Law Distinction to Enforce Implicit Employment Agreements’, in Lawrence E. Mitchell (ed.) Progressive Corporate Law, Westview Press: Colorado, 1995, pp. 219-245.
The thrust of O’Connor’s argument in this article is that director’s fiduciary duties should be read expansively not only to include the interests of shareholders, but also to encompass non-shareholder constituencies such as workers. This is especially in situations of seismic corporate change, such as plant closings and redundancies. Her reasoning is that workers have ‘implicit’ employment agreements with their employers, that in exchange for accepting lower pay at the start of their careers, they will enjoy secure tenure. The workers receive the training they need and the employer’s have a ‘safety valve’ in the form of being able to let inadequate workers go without incurring too significant an expense. These important motivational aspects are left unsaid from formal documents as they are not easily reducible to written terms, yet they merit serious consideration in the wake of mass redundancies as they risk the considerable labor investment made by employees with no possibility of future return. The fiduciary approach is superior to a contractual approach as it relies on trust stemming from property rights rather than contractual promise. As such it doesn’t require express terms and in fact can override contractual provisions that are contrary to it.The author has a skeptical view on the efficacy of stakeholder (a.k.a. constituency) statutes in holding directors to account for failing to uphold workers’ interests, despite their widespread adoption in US states. However, she concedes that famous cases like LOCAL 1330, UNITED STEEL WKRS. v. U. S. STEEL – which found that courts cannot reverse a plant shutdown decision made by a Board of Directors on the basis of un-profitability and that there is no property right to employment – may have been decided differently if a stakeholder statute had been in force at the time of the decision. [Contrast this with the Kamani Tubes Worker Cooperative discussed in an earlier blog post or the Bangladeshi worker recuperated factory that I will discuss in a future post]I particularly liked the farsightedness of this statement, made in the first footnote of the article: “…networks constitute the most efficient form of organization for today’s economic circumstances because they maximize both the flexibility of market transactions and the control associated with hierarchical organization. Fiduciary law’s moral mandate to act in the parties’joint interests may facilitate evolving business practices.” (p. 236). This feeds into her critique of conventional transaction cost economics that views networks to be between “markets and hierarchies” (p. 223ff). She contends that economic transactions do not only turn on promises and exchange and the transaction costs inherent in this but also on trust that is built overtime. The importance of networked organizations seems to be a theme in the literature I’ve been reading recently, including in this essay on the Greek recuperated, self-managed soap factory Vio.me: https://roarmag.org/essays/worker-control-viome-greece/To establish whether an unconventional fiduciary relationship exists, the author’s review of state-level jurisprudence suggests that three trends emerge: “whether the interaction involves a high degree of trust, whether the relationship has continued for a long period, and whether one party is vulnerable because it relies on the other’s decisionmaking [sic] discretion” (p. 225). In essence, the third characteristic means that the features of arms-length, equal bargaining are absent and a considerable degree of control is vested in the stronger party. The weaker party relies on the stronger party’s expertise, with the hope that the latter will uphold the latter’s dignity and be compensated by the former’s improved performance.O’Connor concludes by positing that the US corporate governance paradigm needs to be reformed so as to incorporate employee participation committees modeled on works councils in Europe and directors’ fiduciary duties extending to employees. (On the neutral referee model briefly mentioned in this article, also see O’Connor’s ‘The Human Capital Era: Reconceptualizing Corporate Law to Facilitate Labor-Management Cooperation’, 78 Cornell Law Review 899 (1993) and Mashiko Aoki, ‘Toward an Economic Model of the Japanese Firm’, 28 Journal of Economic Literature 1 (1990).)
- David Ellerman, ‘On Property Theory‘, Journal of Economic Issues, Vol. 48, No. 3, 2014, pp. 601-624.
Labor produces Labor’s product (Q,–K,0), which is the sum of the de facto responsible actions conceived as a “commodity” (0,0,L), plus the whole product (Q,–K,–L). But Labor only appropriates (as first seller) the “labor commodity,” while the employer appropriates the whole product. (p. 621)
Why do legal authorities (passively) enable employers to (mis)appropriate the responsibilities and liabilities of employees actions and thereby appropriate the whole product resulting from said actions? This is the core question Ellerman seeks to explore. He argues that in reality employees only agree to cooperate with employers in certain activities but by dint of doing so, do not automatically assign to the employer responsibility (and liability) for their joint activities (p. 617) nor enjoyment of the whole product. However, legal authorities read this ‘transfer’ of responsibility and entitlement to the whole product into employment contracts and legitimize the status quo through their non-action in rectifying this appropriation. In a manner of speaking it is an example of the invisible (judge’s) hand at work. In contrast, if the employer-employee were participants in a joint criminal enterprise and the law became ‘visible’, they would both have been legally responsible and liable individually. They would bear the fruits and consequences of their own actions. On a philosophical level, the mis-imputation of responsibility in the employment contract is in violation of ‘Hume’s conditions’ that transfers can only happen by consent and that promises [contracts] must be performed, as well as the basic Lockean principle that legal responsibility follows de facto responsibility. What is interesting though is that even if there is purported consent, Ellerman argues elsewhere that certain transactions and relationships cannot be consented to because, among other things, the inalienability of conscience. As a consequence, Ellerman argues for the abolition of the conventional employment relationship altogether and its substitution with a system where “production could only be organized on the basis of the people working in production (jointly) hiring or already owning the capital and other inputs they use in production” (p. 619). In other words, responsibility, as with membership, would solely rest on those who work in the firm.
- Gary Gereffi, ‘Global Commodity Chains: New Forms of Coordination and Control Among Nations and Firms in International Industries’, Competition & Change, Vol. 4, 1996, pp. 427-439.
For people interested in global value/commodity chains, the work of Gereffi is canonical. He maps these chains and began to reveal their complexity. One of his most notable contributions is providing a theoretical framework for distinguishing between different types of commodity chain: producer-led chains and buyer-led chains. The qualification refers to which node in the chain has a concentration of coordinating power: (manufacturing) producer or (retail/marketing) buyer. “Whereas producer-driven chains refer to capital- and technology-intensive industries like automobiles, aircraft, or computers where transnational corporations or other large integrated industrial enterprises play the leading role, the main barriers to entry in labor-intensive, buyer-driven chains like apparel, footwear, or toys are at the design and marketing stages, which gives primary power to large retailers and branded marketers.” (p. 434) This website provides a graphic representation of this. Thus, Apple is an example of the former while Starbucks, Nike etc. are illustrations of the latter.
- Boaventura de Sousa Santos, ‘Globalizations’, Theory, Culture & Society, Vol. 23, Nos. 2-3, 2007, pp. 393-399.
I’ve been delving into transnational legal orders and transnational legal pluralism lately (November 2017) and in doing so, came across this short article. It serves as a good, quick introduction to the topic of hegemonic and counter-hegemonic globalization, before going into book-length treatments of those topics. When thinking about globalization, he reminds us that all ostensibly global conditions and entities had local origins somewhere else in the world (i.e. globalized localism). By that same token, globalization (of one set of local conditions or entities) entails the provincializing, the trivializing, the crowding out of another set of local conditions or entities (i.e. localized globalism). [pp. 396-397] This continues to provide a useful framework for conceptualizing more recent developments like the growth of gig economy enterprises. It can also be used to frame the transnational resistance (i.e. insurgent cosmopolitanism) to hegemonic globalization, for example the World Social Forum and solidarity movements like the Encuentros I mention elsewhere in this blog.
- Stephen P. Garvey, ‘Agency and Insanity’, Buffalo Law Review, Vol. 66, 2018, pp. 123-191.
I recently came across this article on the insanity defense and was intrigued by the author’s argument for understanding insanity as being predicated on ‘lost agency’. Reading it made me think of how the question of categorizing levels of artificial intelligence (AI) and determining its autonomous capacity will turn on AI’s capacity for ‘free will’, ‘rationality’ and ultimately, ‘agency’. Insanity is an intriguing phenomenon to consider while researching AI as it helps us understand whether a mistake or wrongful act is due to a problem inherent to its code or a (mental) disease/defect that becomes apparent from the AI’s self-learning process and activities. Studying insanity also highlights how central agency is to allocating liability. As Garvey argues, lost agency should be central to establishing an insanity defense and exculpating liability of the defendant, rather than loss of cognitive capacity and/or physical control stemming from a mental ailment. While under traditional theories of insanity, the question is whether the actor could have chosen otherwise than he/she did, under lost agency theory the issue is whether the actor experienced him/herself to be one doing the choosing at the time or not (p. 164). In other words, a sense of agency is lost when “the internal mechanism by which we gain a sense of agency fails to work as it should” (p. 170). If a question arises about the liability of (autonomous) AI, perhaps the follow-up question should be invited whether it had lost agency, due to the aforesaid (mental) disease/defect, or had retained a sense of agency. After all, as the author notes: “[b]lame and censure presuppose responsibility, responsibility presupposes agency, and agency presupposes a sense of agency” (p. 159).Moreover, humans who have been certified as insane may be precluded from liability for all their actions and as a corollary, prevented from holding several positions of responsibility, which may be erring on the side of caution but could be over-inclusive and reflect a simplified understanding of a particular mental condition. At the very least, a thought-provoking digression into behavioural science and law & psychiatry; a nice change from the usual law and economics material.
- Søren Kierkegaard, Clancy Martin (tr.) From the Present Age.
I particularly liked this passage: “A revolutionary age is an age of action; ours is the age of advertisement and publicity. Nothing ever happens but there is instantaneous publicity everywhere. In the present age a rebellion is of all things the most unthinkable. Such a manifestation of strength would seem preposterous to the shrewd intelligence of our time. On the other hand, a political virtuoso might accomplish something nearly as extraordinary. He might write a manifesto proposing a general assembly at which people should resolve upon a rebellion, and it would be so prudently written that even the censor would let it pass. At the meeting itself he would be able to create the impression that his audience had rebelled, after which they would all go quietly home – having enjoyed a very pleasant evening.”
- Jeanne L. Schroeder, ‘The End of the Market: A Psychoanalysis of Law and Economics’, Harvard Law Review, Vol. 112, 1998, pp. 483-558.
In preparation for visiting Ljubljana in a couple of days, I thought I would return to the work of the city’s most famous son – Slavoj Zizek. In doing so, I stumbled across this article by Professor Schroeder of Cardozo Law School.In short, the article presents a Lacanian analysis of the concept of ‘perfect markets’; markets which are devoid of Coasean transaction costs. The reduction of transaction costs is a regular refrain of Law & Economics scholars and is present in discussions ranging from the ‘completion’ of the EU’s internal market to the introduction of AI in boardrooms. After providing an overview of the concepts of Eros and Thanatos, the Symbolic, the Imaginary and the Real, and what Lacan controversially dubs as Castration, the author explains how the ideal of a perfect market is essential for understanding markets but is both empirically and theoretically impossible (p. 491, 517). For future reference (i.e. for myself!), I will very briefly summarise how she applies these concepts to the idea of perfect markets.The article begins with a retelling of the myth of Orpheus and Eurydice. The author analogises Orpheus’s need to become whole by embracing, claiming Eurydice as being Eros (p. 485). This desire is a desire for the Real, a realm that is prior and beyond human capacity to envision/fantasize (i.e. the Imaginary order) or articulate in symbols (i.e. the Symbolic order of language and law) (p. 500, 505). It is beyond all “alienating distinctions of time, space, and personality” (p. 494). The Real is cut off and removed – castrated in Lacanian terms – from the Symbolic order, and though it allows freedom and (inter)subjectivity, humans continue to long for what is missing (p. 494, 501). As humans cannot obtain the Real, they make do with objects that appear as convenient substitutes and seem to falsely meet their desires (p. 496). To actually secure what one desires, to enter the realm of the Real is to achieve an ecstatic union (jouissance) which bring about its death – to become Thanatos (pp. 486-487, 510).The desire for a perfect market reflects Thanatos (p. 550). Perfect markets exist in the realm of the Real while actual markets exist in the realm of Symbols, walled off from each other by the existence of transaction costs (as such, transaction costs serve the role of castration in psychoanalysis) (p. 494). It is this desire for the Real, in spite of Castration, which fuels market transactions (p. 523). This desire of e.g. law & economics scholars for perfect markets – and market relationships – is manifested in their construction of Imaginary orders and the desiring of objects – which act as substitutes for humans’ true object of desire (p. 506-507, 511). If this construction is not maintained, the death wish, Thanatos, rears its head and the desire morphs into a wish to become one with the universe – to enter the realm of the Real. And giving way to this desire for perfect markets is to bring the end of actual markets constructed by a Symbolic order (p. 515, 551).The reason why a perfect market is theoretically impossible is because – unlike the hypothetical, friction-less conditions of physics – the Real and the Symbolic cannot coexist. Such a transaction cost free market would by definition have no differentiation of objects (p. 546-547), no exchange, no unconscious desire (p. 540), entail the collapsing of time and space (p. 535-536) and would require all economic actors to blur into one. (Blurring into one would ensure a market with perfect knowledge, p. 520, 543-544.) Legal subjectivity – predicated as it is on recognition by another legal subject – would be extinguished as there are no longer distinctions between economic actors (p. 548). Everyone would be required to be of one mind (p. 551). In sum, achieving the Real of the perfect market would mean the obliteration of all market transactions (p. 518) and creating a perfectly un-free market (p. 552). In the author’s own words, “any attempt to create legal rules that mimic the perfect market are doomed because we can never know the true contours of the ideal to be mimicked” (p. 558).Instead, postponing this desire – indefinitely – is central to creating desire (including the consumerist sense of the word) and driving the economy (p. 557). In other words, actual markets are defined by their imperfections, i.e. their transaction costs. To fulfill its function as an analytical tool, the contours of the perfect market must be repressed (p. 516). Thus, it is better to study “actual costs and actual behavior in actual markets on their own terms” (p. 558).Reflecting on Schroeder’s arguments made me wonder whether other aspirational ideas – such as broad-based democratic alternatives to capitalist production – are also asymptotic or one that is in the realm of the Real. More controversially, given Schroeder’s description of the transaction cost-less perfect market, can platforms like Google or Facebook or Amazon – or those now being constructed on the blockchain – be considered the Real? By working to eliminate transaction costs, do they eliminate the economic basis for the existence of the firm? (p. 553).
- Marco Goldoni and Christopher McCorkindale (eds.) Hannah Arendt and the Law (Hart, 2013)
‘Introduction’While reflecting on Arendt’s seminal book,The Origins of Totalitarianism, the Editors noted that there were three steps in the total domination of man: 1) the destruction of the juridical person (e.g. arresting a person for their identity, which is beyond their control, instead of any violation of law. The law was at least consented to.), 2) the destruction of their moral person (e.g. making it impossible to become a martyr by rendering the person anonymous) and 3) overcoming the person’s individuality (i.e. treating the person as part of a faceless herd) (pp. 7-9). This can be seen in the present day with the treatment of the Rohingya and other stateless peoples.I particularly liked this quote: “Arendt demanded from citizens the assumption of responsibility: she demanded that they act” (p. 11). The spirit of action being, after all, the defining character of the human condition.
Keith Breen, ‘Law beyond Command? An Evaluation of Arendt’s Understanding of Law’
For me, this chapter was interesting because it summarises Arendt’s conception of freedom and political action, which differs from modern interpretations of these terms. “For Arendt the true meaning of political action consists in ‘the joy and gratification that arise out of being in company with our peers, out of acting together and appearing in public’.” (p. 15) Freedom is understood to depend on speech – and thus on others. Instead, contemporary widely-received notions of freedom are based on ‘sovereignty, the ideal of a free will, independent from others and eventually prevailing against them’ (p. 18, citing Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought (Penguin, 1977) 163.)Indeed, this view is reflected in Arendt’s general understanding of law being based on “mutual consent and promise between citizens” rather than sovereign command (p. 24). Arendt’s understanding of nomos are as laws which are voluntarily acceded to as part of delineating a heretofore inchoate political community – much like the erection of a city wall. This is in contrast with the Greek conception of nomos, which Arendt describes in The Promise of Politics:”For the Greeks, law…is essentially conceived by a law-giver and must first exist before it can ever into the political realm. As such it is pre-political, but in the sense that it is constitutive for all further political action and interaction. Just as the walls of the city…must first be built before there can be a city identifiable by its shape and borders, the law determines the character of its inhabitants…The law is a city wall that is instituted and erected by one man, inside of which is created the political realm where many men may move about freely.” (p. 180) The key difference being that the Greek conception sees the law-maker as “the architect of the city and its builder, not the politikos and citizen” (p. 181).Yet, as the author points out, the spectre of violence still pervades this contract-based/communitarian understanding of law as it brings the polity into being and ensures its continuance through barriers that cannot be transgressed without punishment (p. 27). Agreement or consent when arrived, are not always achieved amicably, but are often marked by “discord, distrust and mutual suspicion” (p. 30). He adds in footnote 78, “Arendt glosses over the reality that collective endeavours are distinguished less by an ‘agreed purpose’ than by a confluence of many purposes, some of which are bound to conflict. And even when there is an ‘agreed purpose’, such can be subject to widely dissimilar interpretations, giving rise to further dissension and conflict”. There is also the fact that there may be many individuals who are factually part of a community but are excluded from the construction of nomos. As such, the need for a ‘mundane’ sovereign legislator remains – “to determine boundaries and relationships at particular moments” (p. 32).
Michael A. Wilkinson, ‘ Between Freedom and Law: Hannah Arendt on the Promise of Modern Revolution and the Burden of ‘The Tradition”
In a similar vein, Wilkinson adds that freedom is not about safeguarding individuals from government, as much as it is about “claiming a share in government” (p. 43). Her conception of freedom rests on being able to call into existence something which did not exist. This is only possible in the public realm: “It is only in the course of acting and speaking in the public realm that men reveal this potential to the world by revealing who they are, exercising their freedom by disclosing their ‘ unique personal identities'” (p. 40).
The Platonic ideal sees the public space as being a “fabricated object” (p. 52), with statesman being a craftsman or technician (homo faber) who “makes his city” (p. 53). Arendt’s ideal instead is that we should value the “opinions of those acting and speaking with each other in the public realm” (p. 53).
William Smith, ‘A Constitutional Niche for Civil Disobedience? Reflections on Arendt’
Civil disobedience is a manifestation of freedom – in the sense of freedom to participate in public affairs – when public authorities fail (p. 140). This can be differentiated from conscientious objection. Conscientious objection is oriented to the self, while civil disobedience is to the public realm. What one person may find to be unconscionable, another might not. Through civil disobedience, one’s subjective view is subsumed by ‘common opinion’ arrived at along with others (p. 135). The latter is therefore political, rather than personal, as it strives to improve a political order (p. 136). In addition to manifesting freedom, Smith notes that Arendt viewed civil disobedience stimulates (demonstrable) public happiness and public spirited-ness. Arendt’s definition of public happiness is particularly interesting: “the peculiar sensation that accompanies active participation in public life: it reveals itself in the ‘joys of discourse, of legislation, of transacting business, of persuading and being persuaded’.” (p. 139)
Arendt made a unique contribution to political theory by recommending that civilly disobedient minorities be institutionally included in the process of government: civilly disobedient minorities should “influence and assist Congress by means of persuasion, qualified opinion, and the number of their constituents” (H. Arendt, Civil Disobedience, in Crises of the Republic, Harcourt Brace & Company, 1972, p. 101). This is not the same as legalising civil disobedience — as the dissenting citizens can still be punished or penalised for their actions (p. 148). Smith then goes on out to outline what, in his view, Arendt’s proposal could look like:
“The complaints of civilly disobedient groups could be treated as inputs to either consultative or appellate mechanisms, depending on whether their protest is against a proposed or existing law or policy. A civilly disobedient group might be given the opportunity of delegating representatives to petition government at a specially convened public commission or inquiry. Alternatively, there may be existing institutional forums or committees, relevant to the contested policy area, to which civilly disobedient citizens could be given access. The most ambitious suggestion is that a permanent body could be set up for the purpose of hearing complaints of representatives from among the ranks of the groups whose members engage in civil disobedience. The permanent body would provide a stage for a confrontation between activists and government representatives. This confrontation would be deliberative insofar as it enabled civilly disobedient minorities to articulate their grievances, receive explanations from those in power and respond to counter-criticisms that are put to them by institutional actors. The dialogue between activist and government representatives in the permanent body could be moderated and adjudicated by a panel that is, as far as possible, impartial between the two sides. The panel might be selected from legislative assemblies, its members drawn from the ranks of major political parties with no particular party or grouping enjoying a majority. The culmination of the confrontation could be a summary document, which presents the collective judgement of the panel and its non-binding recommendations. In the event of disagreement among panel members, the body could follow the practice of law courts by drafting a ‘majority’ and ‘minority’ report. The government, and perhaps the civilly disobedient group, could ‘complete’ the deliberative process by drafting a response to the report and recommendations of the panel.” (p. 143) This is necessary as the State can choose to tolerate dissidents but continue to be deaf to their concerns (pp. 145-146). At the same time, this method prevents knee-jerk reactions and allows proper, reasoned ventilation of grievances – subject to public scrutiny (p. 149).
Jan Klebbers, ‘Hannah Arendt and the Languages of Global Governance’
Klebbers astutely notes that in our current neo-liberal human rights order, the most potent rights are civil and political rights: “the catalogue of human rights as usually conceived does not provide for job security, or stipulate a right to a minimum wage or a general basic income. While it does protect the freedom to form trade unions, it does not necessarily support a right to strike, or a governmental obligation to accept collective bargaining agreements or to force employers to accept these. The same catalogue does not provide a safety-net against poverty and malnutrition, or emergency rights in times of food crises, and the right to education that is recognised in some documents detailing civil and political rights focuses on non-discrimination in education rather than anything else.” (p. 242) In short, human rights law may be appropriate in dealing with individual violations – but not for structural problems (ibid).
Arendt identified the paradox that though human rights is predicated on human dignity, it takes the actions of public authorities to activate them. In materialising these human rights, governments may be motivated by concerns other than human dignity (p. 244)! Instead the right to have rights can only be guaranteed by humanity itself (p. 245). To do so, requires global democracy – or at least a seamless web of commitments by polities – in which there is equality among all and there are no gaps through which e.g. the stateless may fall (p. 246).
Charles Barbour, ‘Between Politics and Law: Hannah Arendt and the Subject of Rights’
Barbour’s central thesis is that “a right is not a property or a possession, but a capacity to act, and that we cannot divorce her discussion of rights from her theory of action.” (p. 307) In contrast to Agamben, who received Schmitt’s notion of the decision delineating the law and the exception, it is action that moulds (and threatens) the walls that communities erect as laws (p. 311). Arendt also goes on to argue that power also doesn’t belong to an individual but to a group as it ‘corresponds to the human ability not just to act but to act in concert’ (H Arendt, On Violence, Harcourt, 1970, p. 198). This accords with her view that the rights to engage in politics should be privileged over others (p. 315). The stateless, for instance, are excluded from politics and therefore are incapable of action. It also explains why Arendt preferred direct, over representative, democracy and advocated the idea of council democracy (p. 317).
James Bohman, ‘Citizens and Persons: Legal Status and Human Rights’
Bohman adds to Barbour’s reflections on the stateless by pointing out that the destitute may also be excluded from the right to have rights or to engage in politics (p. 323). Thus, citizenship per se cannot be the basis of conferring the right to have rights. All humans without the right to have rights are consequently beings who have only duties and no rights (p. 327). Hence, Bohman argues that the right to have rights should issue from being a person, rather than a citizen (p. 324).
- Onara O’Neill, A Question of Trust: The BBC Reith Lectures 2002, Cambridge University Press, Cambridge, 2002
“We aspire to complete transparency in public life, but neglect the more fundamental goal of limiting deception” (viii)”Yet this high enthusiasm forever more complete openness and transparency has done little to build or restore public trust. On the contrary, trust seemingly has receded as transparency has advanced. Perhaps on reflection we should not be wholly surprised. It is quite clear that the very technologies that spread information so easily and efficiently are every bit as good at spreading misinformation and disinformation. Some sorts of openness and transparency may be bad for trust. ”
Her core argument is that we need to reduce deception through improved practices of governance — and not have consistently onerous demands for transparency (via regulation and centralisation).
- Fritjof Capra and Ugo Mattei, The Ecology of Law, Berrett-Koehler Publishers Inc., Oakland CA, 2015
The principal thesis of this book is that “Western jurisprudence, together with science, has contributed significantly to the mechanistic worldview; since modernity produced the materialistic orientation and extractive mentality of the Industrial Age, which lies at the root of today’s global ecological, social, and economic crisis, both scientists and jurists must share some responsibility for the current state of the world” (p. ix-x). I can follow – and to a large extent sympathise – with this thesis, given my recent forays into the work of Hans Kelsen, Hohfeld and scholars who seek to bridge artificial intelligence and the law. What troubles me, from the outset, is the authors’ decision to discuss “only Western law and Western science” (p. x). Their reason for doing so: “There is no ethnocentrism in this choice – only the urgency to place responsibility where it belongs” (p. x), while scathing and pithy, risks greatly simplifying the origins and development of (supposedly) ‘Western’ law and ‘Western’ science. For one, it is unclear what they mean by Western. If it is used in the commonly understood geographical sense, it would be injudicious to exclude polymaths such as Ibn Rushd (Latinized as Averroes) from their analysis, given that he was born in Andalucia in contemporary Spain. If it used as polite code for ‘white male’ (and the timeline of ‘leading scholars in science and jurisprudence’ in pp. xiii-xix certainly give such an impression), then their central argument is more comprehensible but lacks comprehensiveness. Later in the book, they contend that dominant notions regarding private property and sovereignty are constructed on Western scientific thought, but I cannot help but wonder if their analysis would have been different if they included the influence of Islamic enlightenment scholarship. This may have been particularly useful when considering how the ‘atomising’ effect of scientific analysis can be squared with non-secular worldviews – outside of Acquinas’s scholastic tradition (p. 34).
The authors seek to refute current legal paradigms re: sovereignty and private property by advocating a new “ecology of law”. This is based on their realization that “the planet as a whole is a living, self-regulating system. The view of the human body as a machine and of the mind as a separate entity is being replaced by one that sees not only the brain but also the immune system, the bodily tissues, and even each cell as a living, cognitive system. Evolution is no longer seen as a competitive struggle for existence, but is rather viewed as a cooperative dance in which creativity and the constant emergence of novelty are the driving forces (p. 10).” Contra Descartes and Newton, the material universe is more than just a machine, operating according to the Newtonian laws of motion (p. 42). As such, legal systems predicated on absolutist notions of sovereignty and private property are ill-equipped for this new systemic, ecological paradigm and as a consequence, the norms under-girding these legal notions need to change accordingly. At the core of their ecology of law thesis “lies a view of social reality not as being an aggregate of individual “building blocks” but rather as being composed of social networks and communities. Law, in this view, is not an objective structure, but emerges from actively engaged citizen and legal communities as the legal embodiment of their self-organization” (p. 4). This view not only questions the status of law as an autonomous discipline, it challenges the ontological structure of law – in particular what law is and who has the authority to create law. Instead, they position law as being a “process of “commoning,” a long-term collective action in which communities, sharing a common purpose and culture, institutionalize their collective will to maintain order and stability in the pursuit of social reproduction. Thus the commons – an open network of relationships – rather than the individual, is the building block of the ecology of law” (p. 14).
Within my current sphere of interest, the authors advocate for stopping the ‘privatisation of the Internet’ (p. 12).
In terms of argumentation, this self-imposed restriction regarding intellectual heritage leads the reader to wonder who really composes the “social networks and communities” that the authors refer to as being central to a new ecology of law.