Liberalism needs protection

[a_majoor]

Part 4

http://www.the-american-interest.com/articles/2014/06/15/the-twin-insurgency/

THE ENCLAVIZATION OF MICROSOVEREIGNTIES

During the 1990s, it became a fashionable form of irony to declare that, in the new post-Marxist era, the state (the dirigiste state, at least) was destined to wither away. In truth, something more subtle was going on: the double collapse of social modernist state’s capacity and legitimacy was giving birth not to the post-historical utopia of a universal consensus in favor of liberal democratic capitalism, but rather to a two-headed monster in the form of plutocratic secession and deviant globalization. Instead of projects of collective emancipation, what both plutocratic and criminal insurgents desire is for the social modernist state to remain intact except insofar as it impinges on them. Neither criminal nor plutocratic insurgents are revolutionaries in the classic modernist sense of political actors who seek to take over the state.

Indeed, as the social modernist state failed to realize its promise, the very notion of a revolution that aspires to a project of national-scale collective social reform has come to seem quaint. (Of course, rebels who seek to take over or direct the state toward projects of social reform do still exist: Marxian movements like the Zapatistas in Mexico or the Naxalites in India, Islamic movements like Al-Shabaab in Somalia and the Moro insurgency in the Philippines. But these are arguably anachronistic phenomena.) Today’s rebels increasingly seek neither state control nor national (or international) social reform. Nor do they seek a political revolution in the Arendtian or Burkean sense of a contest for direct operational and ideological control over the organs of the state. Instead of being in revolt against a particular political regime with the goal of building better government, they aim instead to cripple their hosts states in order to gain de facto zones of private autonomy that can enable individual or corporate enrichment. They are thus parasitic in a very specific sense: They free ride on the institutional legacy of social modernism so as to avoid costs to their businesses.

What both insurgencies represent is the replacement of the liberal ideal of uniform authority and rights within national spaces by a kaleidoscopic array of de facto and even de jure microsovereignties. Rather than a single national space in which power is exercised and all residents enjoy rights in a consistent and homogeneous way, the cartography of the dual insurgency consists of diverse enclaves of heterogeneous political authority and of non-standardized social-service provisioning arrangements.

As these arrangements emerge, national and local authorities proliferate a variety of increasingly one-off exceptions to the general rules, incrementally traducing the liberal notion of equality before the law. Just as the 1930s saw a multiplication of conditions poised between war and peace, so today do we see the multiplication of various forms of authority between the full-blown modern state and outright anarchy, symbolized by the blurred lines between police, military, and private security contractors. The process tends to be self-reinforcing: The proliferation of exceptional and unique microsovereignties increases the scope for insurgents to engage in jurisdictional arbitrage and generates demands by other insurgents for their own sovereign exceptions. In the space of the dual insurgency, citizenship no longer signifies the liberal ideal of an identical package of rights for all, but instead means very different things depending on where individuals are in physical and social space.

Within plutocratic enclaves, the source of authority and loyalty is, at bottom, money. From a spatial perspective, plutocratic insurgents seek to create zones of private authority and legal autonomy where they can privately command goods once considered public, including not just security but also increasingly schooling, transportation, health care, shopping, legal enforcement, and so on. The paradigmatic case for plutocratic spatial segregation and secession are so-called gated communities. These spaces are much more than simple residential enclaves but increasingly offer full-service operations that contain virtually everything their denizens need. Residents only need to leave in order to travel to other such enclaves.

Rights within such spaces accrue to dollars rather than to citizenship. The vision of the future here is of a global archipelago of what Evan McKenzie has called “privatopias”, essentially gated enclaves linked by air and internet to other such spaces, protected by high ramparts from the roiling dystopian ocean of the hoi polloi.7

In addition to these zones of physical separation, plutocratic insurgents also seek out (or seek to create) virtual zones of legal exception in the form of offshore tax havens and special economic zones allowing them to avoid tariffs as well as laws designed to protect labor or the environment. Plutocratic insurgents are adept at playing off one jurisdiction against another, threatening to take their capital elsewhere if the local authorities refuse to grant the exceptions they seek.

The enclaves of criminal insurgents are more precarious. Unlike the visible separation that the plutocratic insurgents enjoy in the form of high walls and armed guards, the autonomous zones of deviant globalizers are more temporary and fragile. Such autonomous spaces take the form of feral “no-go zones” in which some notionally social modernist state may claim authority, but in which true power is wielded by warlords, gangsters, or other kinds of organized criminals. In these zones, sources of authority and loyalty and the application of raw power tend toward what might be called “neo-tribalism”—“neo” in the sense that primal loyalties adhere not just to those who share (perceived) bonds of ancient kinship, but rather in accordance with all manner of intense and ritualized personal connections among young male specialists in the use of violence.

In short, while globalization is indeed undermining national political institutions and thus national identities and loyalties, what appears to be replacing the national is not the “global” political identity that “cosmopolitical” dreamers have long aspired to, but rather a return to localized identities rooted in clan, sect, ethnicity, corporation, and gang.8 In literary terms, this future has more in common with Neal Stephenson’s Snow Crash than it does with Gene Rodenberry’s Federation utopia in Star Trek.

The central difficulty that both plutocratic and criminal insurgents face is that it is unclear whether the political objective they seek can produce stable equilibria of governance. There are at least two separate reasons to entertain skepticism on that count.

First, the fracturing of sovereign homogeneity increases transaction costs for people traversing them; it requires one to constantly bleed time and effort to determine exactly which zone of governance one is in and thus who is due respect and obeisance. This is equally true whether one considers the spaces of the plutocratic or the criminal insurgency: in the former case, the price is paid to lawyers, in the second it is paid to gangsters.

Second, the kaleidoscope proliferates opportunities for arbitrage and the defection of customers and foot soldiers alike to other governance spaces. The ultimate losers in all of this, of course, are the middle classes—the people who “play by the rules” by going to school and getting traditional middle-class jobs whose chief virtue is stability. These sorts of people, who lack the ruthlessness to act as criminal insurgents or the resources to act as plutocratic insurgents, can only watch as institutions built over the course of the 20th century to ensure a high quality of life for a broad majority of citizens are progressively eroded. As the social bases of collective action crumble, individuals within the middle classes may increasingly face a choice: accept a progressive loss of social security and de facto social degradation, or join one of the two insurgencies.

[For a fully-annotated version of Prof. Gillman's essay, click here.]

1That said, labor-management relations in the West (particularly in the United States) were combative even during the postwar heyday of social modernism. Plutocratic pushback against both organized labor and the regulatory and tax reach of the liberal state existed from the beginning of the New Deal and became a formal political strategy by mid-1940s. Nevertheless, the end of the Cold War represented a major watershed. One cannot help but note the contrast between the public-mindedness of postwar statesmen like Jean Monnet, Dwight Eisenhower, and Willy Brandt and the shameless way that post-Cold War Presidents (George H.W. Bush, Clinton), Chancellors (Schroeder) and Prime Ministers (Blair) have been happy to receive enormous payouts from hedge funds and foreign governments upon leaving office.

2See Ajay Kapur, Niall Macleod, and Narendra Singh, “Plutonomy: Buying Luxury, Explaining Global Imbalances”, Citigroup Research, October 16, 2005.

3Rodrik, “Goodbye Washington Consensus, Hello Washington Confusion?”, Journal of Economic Literature (December 2006).

4See Chrystia Freeland, “The Rise of the New Global Elite”, The Atlantic (January/February 2011).

5Monbiot, “A Manifesto for Psychopaths”, Guardian, March 6, 2012.

6The fortunes of plutocratic insurgents in the BRICs has been more ambivalent. Russia experienced a huge plutocratic insurgency in the 1990s, but the arrival of Putin and the defenestration of the first-generation oligarchs represented the reassertion of the prerogatives of the state—that is, a successful plutocratic counterinsurgency. While India has been experiencing many classic symptoms of plutocratic insurgency, in Brazil social democratic governments since 2000 have succeeded in narrowing inequality and expanding social welfare benefits. In China, the rise of the super-rich has happened mainly through state-sponsored (though not necessarily state-owned) enterprises, which means that plutocrats there remain dependent on the state and the Communist Party and, as such, are relatively insecure politically. There and elsewhere in East Asia rent-seeking rather than insurgency remains the norm among plutocrats.

7McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private Government (Yale University Press, 2006).

8“Cosmopolitical” is the coinage of Pheng Cheah and Bruce Robbins, eds., Cosmopolitics: Thinking and Feeling Beyond the Nation (University of Minnesota Press, 1998).

Nils Gilman is associate chancellor at the University of California, Berkeley.

 

[a_majoor]

This is a good article on how the Classical Liberal conception of rights (negative rights) is being eclipsed by the concept of "positive rights". Since these so called positive rights depend on being "given" something at the expense of someone else, the are logically a null concept (a right is inherent and cannot be "given" to you) and further undercut by being situational (if there is no money, then you can't be "given" the right under any circumstances [Ontario voters take note], and the State can be selective in how they "give" or enforce positive rights. A look at so called Human Rights Commissions and Tribunals demonstrates this when you see who gets prosecuted and who does not).

http://www.bloombergview.com/articles/2014-07-07/who-s-the-real-hobby-lobby-bully

Who's the Real Hobby Lobby Bully?

Megan McArdle
Jul 7, 2014 4:32 PM EDT
By Megan McArdle

(Corrects description of "left" in the fifth paragraph.)

Here’s the most interesting thing to me about the long, loud debate over the recent Hobby Lobby decision: Both sides believe that they are having someone else’s views forcibly imposed upon them.

Usually in political disputes, it’s broadly understood which side is being forced and which side is doing the forcing. We may argue about how much people should pay in taxes or how harsh incarceration policies should be, but both sides can generally agree on who is being coerced and who is doing the coercing. Here we have a case in which folks on both sides genuinely believe that they are the ones being imposed upon. How is it possible that we disagree on something so fundamental and obvious?

Cards on the table: I think that institutions Hobby Lobby and Little Sisters of the Poor are obviously correct -- they are being forced by the government to buy something that they don’t want to buy. We can argue about whether this is a good or a bad idea, but the fact that it is coercive seems indisputable. If it weren’t for state power, the Little Sisters of the Poor would be happily not facilitating the birth-control purchases of its employees; the Barack Obama administration has attempted to force them to do otherwise. The U.S. Supreme Court has ruled that this coercion violates the Religious Freedom Restoration Act, and it must therefore cease.

All this is old ground. The interesting question is why people on the other side view ceasing the coercion as itself coercive while arguing that the original law did not, in fact, force anyone to violate their religious beliefs.

I think a few things are going on here. The first is that while the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts. That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?” That shows in Justice Ruth Bader Ginsburg’s dissent, where it seems to me that she takes a very narrow view of what role religious groups play in the lives of believers and society as a whole.

The second, and probably more important, problem is that the long compromise worked out between the state and religious groups -- do what you want within very broad limits, but don’t expect the state to promote it -- is breaking down in the face of a shift in the way we view rights and the role of the government in public life.

To see what I mean, consider an argument I have now heard hundreds of times -- on Facebook, in my e-mail, in comment threads here and elsewhere: “Hobby Lobby’s owners have a right to their own religious views, but they don’t have a right to impose them on others.” As I wrote the day the decision came out, the statement itself is laudable, yet it rings strange when it’s applied to this particular circumstance. How is not buying you something equivalent to “imposing” on you?

I think you can understand this, however, as the clash of principles designed for a world of negative rights, in a society that has come to embrace substantial positive rights -- as well as a clash between old and new concepts of what is private and what is public.

All of us learned some version of “You have the right to your beliefs, but not to impose them on others” in civics class. It’s a classic negative right. And negative rights are easy to make reciprocal: You have a right to practice your religion without interference, and I have a right not to have your beliefs imposed on me.

This works very well in situations in which most of the other rights granted by society are negative rights, because negative rights don’t clash very often. Oh, sure, you’re going to get arguments about noise ordinances and other nuisance abatements, but unless your religious practices are extreme indeed, the odds that they will substantively violate someone else’s negative rights are pretty slim.

I’m not saying that America ever perfectly hewed to this sort of ideal. (Blue laws, anyone?) I’m just saying that the statement of this ideal was perfectly consistent with the broadly held conception of what government was for, which was to provide “public goods” in the classical economics sense,1 but otherwise mostly to keep other people from doing stuff to you, not to do things for you or force you to do them for other people.

In this context, “Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.

Alongside this development, as Yuval Levin has pointed out, we have seen an ongoing shift, particularly on the left, in the balance between what constitutes the private and the public spheres, and who has powers in which sphere. There’s a reductive tendency in modern political discourse to view public versus private as the state versus the individual.

In the 19th century, the line between the individual and the government was just as firm as it is now, but there was a large public space in between that was nonetheless seen as private in the sense of being mostly outside of government control -- which is why we still refer to “public" companies as being part of the “private" sector. Again, in the context of largely negative rights, this makes sense. You have individuals on one end and a small state on the other, and in the middle you have a large variety of private voluntary institutions that exert various forms of social and financial coercion, but not governmental coercion -- which, unlike other forms of coercion, is ultimately enforced by the government’s monopoly on the legitimate use of violence.

Our concept of these spheres has shifted radically over the last century. In some ways, it offers more personal freedom -- sex is private, and neither the state nor the neighbors are supposed to have any opinion whatsoever about what you do in the bedroom. Religion, too, is private. But outside of our most intimate relationships, almost everything else is now viewed as public, which is why Brendan Eich’s donation to an anti-gay-marriage group became, in the eyes of many, grounds for firing.

For many people, this massive public territory is all the legitimate province of the state. Institutions within that sphere are subject to close regulation by the government, including regulations that turn those institutions into agents of state goals -- for example, by making them buy birth control for anyone they choose to employ. It is not a totalitarian view of government, but it is a totalizing view of government; almost everything we do ends up being shaped by the law and the bureaucrats appointed to enforce it. We resolve the conflict between negative and positive rights by restricting many negative rights to a shrunken private sphere where they cannot get much purchase.

In this context, it’s possible to believe that Hobby Lobby’s founders are imposing their beliefs on others, because they’re bringing private beliefs into the government sphere -- and religion is not supposed to be in the government sphere. It belongs over there with whatever it was you and your significant other chose to do on date night last Wednesday. In that sphere, my positive right to birth control obviously trumps your negative right to free exercise of religion, because religion isn’t supposed to be out here at all. It’s certainly not supposed to be poking around in what’s happening between me and my doctor, which is private, and therefore ought to operate with negative-right reciprocity: I can’t tell you what birth control to take, and you can’t tell me.

As I suggested at the top of this post, I don’t think that this synthesis works particularly well, for all sorts of reasons that are too long for an already-long blog post. This post is also already too long for me to explain that I’m aware that I’m simplifying quite a lot here and to explore some of the potential complications. But however simplified and incomplete, I do think this provides a useful framework for understanding why the two sides misunderstood each other so profoundly -- and continue to do so even after all the screaming.



1 Public goods are not “goods provided by the government”; they’re goods that have to be provided by the government, because no one without taxing power can efficiently provide them. Police service is the classic public good because it is nonrivalrous (multiple people can enjoy it) and nonexclusive (you can’t keep other people from enjoying the benefits). If crime goes down, all of us enjoy lower crime, even if we don’t pay taxes. Defense of the borders is another classic public good, and other items such as roads and lighthouses are usually included.

 

[FJAG]

This is a good article on how the Classical Liberal conception of rights (negative rights) is being eclipsed by the concept of "positive rights". Since these so called positive rights depend on being "given" something at the expense of someone else, the are logically a null concept (a right is inherent and cannot be "given" to you) and further undercut by being situational (if there is no money, then you can't be "given" the right under any circumstances [Ontario voters take note], and the State can be selective in how they "give" or enforce positive rights. A look at so called Human Rights Commissions and Tribunals demonstrates this when you see who gets prosecuted and who does not).

http://www.bloombergview.com/articles/2014-07-07/who-s-the-real-hobby-lobby-bully

I'll admit the article is well written but it nonetheless is full of crap.

The concept of "negative" v "positive" rights is a shallow argument that simply doesn't hold water.

All you have to do is consider all the "positive" rights that even the most evangelical Christian expects from government -- a military, a police force, a fire department, an education system. The fact that they are services does not change the argument in that every citizen expects that he has the right to the delivery of these services. It's hard to understand why so many of these groups can't accept that their fellow citizens, all of there citizens, are entitled to an adequate level of health care (including assistance with reproduction control) or common dignity and equality for those who have a different sexual orientation.

The US Supreme Court is unfortunately now under the thrall of a very Roman Catholic majority that has very little hesitation in reading even the most vague legislation to support their arch-conservative agenda. The Religious Freedom Restoration Act had a very limited scope and purpose. It even had bipartisan Republican and Democrat support at the time because no one, especially the more liberal side of Congress, had any idea that these fellows would at some point essentially say that corporations had the right to impose their management's views of religion on their workers.

Religious freedom to me means that everyone has the inalienable right to be free from having the religious beliefs of others imposed on them either directly or indirectly. At that point they are free to choose whatever religion they personally want to follow or, just as importantly, to choose not to follow a religion at all.

What has been happening over the last few decades in the US is a resurgence of large element of those in power who feel that their religious tenants should be imposed on all of the population. The fact that they wrap this in a thin veneer of alleging that they are merely protecting their own religious "rights" makes it no less a coercive.

:slapfight:

:cheers:

 

[Brad Sallows]

The concept of negative and positive rights is entirely sound.  A notion of a right being only inherent is too limiting.  A right can, for example, be freedom from something or an entitlement to something.  How hard is it to recognize this distinction and concede that it exists?

The culture war is essentially an ongoing argument over the provision of entitlements.  As the number of entitlements increases and the pressures on those obligated to provide them increases, partisanship and unpleasantness increase - the bigger the prize and the more that's at stake, the more it's worth fighting for and the fewer scruples some will have with respect to means.  The instinct to tyranny is not hard to trigger in people - just hear them out and then decline to go along with their program.

The dispute over funding contraception isn't about policy; it's about [sarc]putting those g*ddamn Christians in their place[/sarc].  People who supported the losing side in the USSC decision aren't angry because they have to pay for their own pills; they're angry because Hobby Lobby's owners squeezed out from under the statist thumb.  If a government wants funded contraception, then all it has to do is fund contraception - no need to dragoon any unwilling party to provide it.

 

[Edward Campbell]

Repeating myself ...

Rights often collide, and sometimes one right interferes with another. We rely upon courts, using precedents which reflect the ever changing standards of society, to sort out which right trumps which other(s) in any given situation.

Is there a hierarchy of rights?

I believe and assert that there is.

I think we need to distinguish between fundamental rights and other (optional?) rights. I have, fairly consistently, I hope, explained that I believe that there are only four fundamental rights: the rights to life, liberty and property, as defined by John Locke in 17th century England and the right to privacy as defined by Warren and Brandeis in 19th century America. Those four rights are, I assert, inalienable and belong to each individual, regardless of race, creed, citizenship or status, and it is the duty of the state to protect those rights against all comers, including the state and its agents. Some of those rights can be broadly or narrowly interpreted, and that's why e.g. many American scholars suggest that a woman's right to have an abortion is found within the Warren/Brandeis explanation of the right to privacy. All the other rights, including, the right to security and, indeed, to the rights to free expression are less than absolute and some rights ~ see e.g. the bottom half of the United Nations Universal declaration Human Rights, for example ~ are rubbish rights and are unworthy of consideration.

 

[a_majoor]

All you have to do is consider all the "positive" rights that even the most evangelical Christian expects from government -- a military, a police force, a fire department, an education system. The fact that they are services does not change the argument in that every citizen expects that he has the right to the delivery of these services. It's hard to understand why so many of these groups can't accept that their fellow citizens, all of there citizens, are entitled to an adequate level of health care (including assistance with reproduction control) or common dignity and equality for those who have a different sexual orientation.

The military and police are there to protect the rights to life and liberty (defending the citizens from foreign invasion and criminal elements who seek to take their persons or property), so this is the State performing its duty to protect the "negative" rights of the citizens.

You might consider that volunteer firefighters far outnumber the professional firefighting departments in the US, and Education has historically been provided not as a State owned monopoly, but rather as a private business or as part of the package that religious orders provided to parishioners. Firefighting services can be considered a part of protection of life and property, so there is an argument for the State to provide firefighting services, but this is not as strong of an argument as for a Police Force or Armed Services.

The US Supreme Court is unfortunately now under the thrall of a very Roman Catholic majority that has very little hesitation in reading even the most vague legislation to support their arch-conservative agenda. The Religious Freedom Restoration Act had a very limited scope and purpose. It even had bipartisan Republican and Democrat support at the time because no one, especially the more liberal side of Congress, had any idea that these fellows would at some point essentially say that corporations had the right to impose their management's views of religion on their workers.

The assertion that this is some sort of Roman Catholic plot is, bluntly, unproven. The underlying act was passed during the Clinton Administration, hardly a religious or conservative administration. The act is not allowing the management to impose their views of religion, it is preventing the owner's from having their religious beliefs trampled by the power of the State. Oddly, Democrats were enthusiastically for this while Bill Clinton was president, presumably because they thought this was a nice piece of tokenism or window dressing, and never imagined that there were people who did take their religious or spiritual beliefs and duties seriously.

Religious freedom to me means that everyone has the inalienable right to be free from having the religious beliefs of others imposed on them either directly or indirectly. At that point they are free to choose whatever religion they personally want to follow or, just as importantly, to choose not to follow a religion at all.

The correct historical explanation is the American Founders took the ability to impose religion away from the State. There can be no "Church of America", nor can Americans be coerced into following any State religion. Americans are free to worship (or not) in any way they choose, and they can come to your doorstep and tell you about "their" religion, you can equally decline to listen (or show up on their doorstep instead...)

What has been happening over the last few decades in the US is a resurgence of large element of those in power who feel that their religious political tenants should be imposed on all of the population. The fact that they wrap this in a thin veneer of alleging that they are merely protecting their own religious "rights" the 99% makes it no less a coercive.

 

[Rocky Mountains]

The correct historical explanation is the American Founders took the ability to impose religion away from the State. There can be no "Church of America", nor can Americans be coerced into following any State religion. Americans are free to worship (or not) in any way they choose, and they can come to your doorstep and tell you about "their" religion, you can equally decline to listen (or show up on their doorstep instead...)

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

For close to 200 years, this statement meant exactly what it said.  It limited the United States Congress alone from establishing a state religion or passing a law specifically outlawing a religious practice in other than general terms.  If polygamy  was a religious practice, it was not protected.

In the wisdom of judges, a law limiting the power of Congress was extended to state and local government.  At the time of the Bill of Rights, some states still had state religions and maintained them for some time so the general intent seems to have been to bind Congress alone. 

There was never a deliberate attempt to separate Church and State in the United States but the Supreme Court perceived the need for such separation and proceeded to do what judges do best, essentially legislate applying even the flimsiest grounds available to them.

 

[FJAG]

The military and police are there to protect the rights to life and liberty (defending the citizens from foreign invasion and criminal elements who seek to take their persons or property), so this is the State performing its duty to protect the "negative" rights of the citizens.

You might consider that volunteer firefighters far outnumber the professional firefighting departments in the US, and Education has historically been provided not as a State owned monopoly, but rather as a private business or as part of the package that religious orders provided to parishioners. Firefighting services can be considered a part of protection of life and property, so there is an argument for the State to provide firefighting services, but this is not as strong of an argument as for a Police Force or Armed Services.

The assertion that this is some sort of Roman Catholic plot is, bluntly, unproven. The underlying act was passed during the Clinton Administration, hardly a religious or conservative administration. The act is not allowing the management to impose their views of religion, it is preventing the owner's from having their religious beliefs trampled by the power of the State. Oddly, Democrats were enthusiastically for this while Bill Clinton was president, presumably because they thought this was a nice piece of tokenism or window dressing, and never imagined that there were people who did take their religious or spiritual beliefs and duties seriously.

The correct historical explanation is the American Founders took the ability to impose religion away from the State. There can be no "Church of America", nor can Americans be coerced into following any State religion. Americans are free to worship (or not) in any way they choose, and they can come to your doorstep and tell you about "their" religion, you can equally decline to listen (or show up on their doorstep instead...)

You missed some important points in this.

"Volunteerism" has nothing to do with it. My original post was to point out that "negative" v "positive" rights is merely a way to play with semantics when making an argument rather than addressing the reality of modern society.  In modern society there are numerous "positive" services which a democratic government now provides to its citizenry to the point that they have, in effect, become "rights" - not those "basic or fundamental rights" a la Locke and others but those that are established as part of the compact between a citizen and his government. As a further example in our Canadian Society basic health care is one of those "expected rights" while in the US it is not because powerful lobbies exert sufficient influence on the legislators to prevent it.

I have never said, nor do I believe, that there is a "Catholic Plot". I'll expand a bit. There are currently nine justices, six of whom are Catholic and three Jewish. The five MALE Catholics created the majority opinion while the three Jewish and one FEMALE Catholic dissented. Add to that that the five male Catholics are Republican appointments and the female one is a Democrat appointment and (unless you are wearing very heavy blinders) you can easily see that there is a male centric, Catholic centric bias at play with respect to a law where the competing interests are an alleged "freedom of religion" issue as opposed to a "female access to contraception issue". I'm not a subscriber to conspiracy theories, but the make-up of the sides in this decision lead to obvious conclusions.

I agree that the RFRA was enthusiastically endorsed by the Democrats and said so. Passage was virtually unanimous in Congress. The thing is that you have to take the act in context to its historical place. The USSC in a decision called Sherbert v Werner (1963) set out the principles by which a court should determine the right to unemployment compensation for a employee who had been terminated for an alleged exercise of religious freedom-generally this test favoured the employee. Subsequently in another USSC decision called Oregon v Smith (1990) the test was tightened in a case where the religious conduct (in this case a native American ingesting peyote) was an illegal act. Long story short, the RFRA (1993) was designed to overturn the more recent Smith decision and return the test to that in Sherbert.

I think a reading of the RFRA, the Sherbert decision, the Smith decision and the Hobby Lobby decision will make it clear that the majority in Hobby Lobby has not so much interpreted the RFRA but used it as a vehicle which will give employers (whether sole proprietors, partnerships or corporations) to exert their view of religion over their employees and customers. As Ginsburg stated in her dissent, this is a majority opinion of "startling breadth" giving "commercial enterprises" the ability to opt out of virtually any law (save and except tax laws) which "they judge to be incompatible with their religious beliefs" unless the government can display that there is a "compelling government interest" and there is a "less restrictive alternative" available to the government. Since the majority found that where the government itself could fund the program (such as here by providing birth control through a separate program) there is virtually no situation where a "less restrictive alternative" will not be available.

I'll paraphrase in summary: just about every privately held business has been given a licence to discriminate against anyone it wants to on religious grounds. This decision will literally open the floodgates. One thing about devout employers is that they generally will have no hesitation to proselytize to the limit.

I don't think that anyone can truly believe that the Hobby Lobby decision will benefit the average employee in achieving freedom of religion or freedom from religion; if anything it has given religious control to the rich and powerful and in this respect in fact leads to an erosion of the First Amendment rights for the ordinary person.

:endnigh:

:cheers:

 

[Brad Sallows]

>an erosion of the First Amendment rights for the ordinary person.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" is not hard to interpret and is all the First Amendment guarantees with regard to religion.  I doubt anyone is in jeopardy of being forced into an establishment of religion or barred by Congress (or a lesser jurisdiction) from freely exercising their own.

I understand what people want, but the obligations they seek to impose on corporations could use another amendment.

Old-style fascism (people and corporations obligated to serve and participate as dictated by the state) was a foolish path to choose for the ACA.

 

[Edward Campbell]

Notwithstanding the obvious differences in power between most individuals (the 99%) and many corporations, the identity of the corporation as a person is very important, I would argue vital, in the USA - because of the structure of the US Constitution.

UK and EU laws, as I (imperfectly) understand them, achieve similar ends by different means: corporations can own land, can sue and be sued and can be called to the bar of criminal justice for acts committed in their names. In return they have some rights, too - rights which aim and, generally manage to facilitate business.

The invention of the corporation was a key to making the modern, industrial, investor based economy work. Some aspects of corporate identity (as a person) may be problematic, sometimes, but, broadly and generally it is a good, even essential thing.

 

[FJAG]

Notwithstanding the obvious differences in power between most individuals (the 99%) and many corporations, the identity of the corporation as a person is very important, I would argue vital, in the USA - because of the structure of the US Constitution.

UK and EU laws, as I (imperfectly) understand them, achieve similar ends by different means: corporations can own land, can sue and be sued and can be called to the bar of criminal justice for acts committed in their names. In return they have some rights, too - rights which aim and, generally manage to facilitate business.

The invention of the corporation was a key to making the modern, industrial, investor based economy work. Some aspects of corporate identity (as a person) may be problematic, sometimes, but, broadly and generally it is a good, even essential thing.

As a starting point you need to understand that western law generally has two sources: the common law which came out of the UK and which all former British colonies (including the US) have incorporated in some way, and the Napoleonic Code which most continental European countries have incorporated.

In both systems (and I say generally) the law recognizes a corporate entity as a "person" and therefore automatically provides the corporation with the same bundle of rights that a "person" has under the law regardless as to whether it is common law or code based.

The big caveat here is that law makers can easily add or subtract powers by simply changing its definition section or to use terms (like "individual" when it does. One needs to look at the specific law's wording, the country's or province's "Interpretation Act" and case law very carefully to see who or what it applies to. Sometimes the wording is vague and requires the assistance of the courts to interpret. (just as an example early drafts of the Charter of Rights used the term "everyone" but this was amended to the final "every individual" so that there would be no mistake that these rights were designed to exclude corporations. Similarly human rights codes and privacy laws focus on the "individual" as opposed to the "person" but each can distribute the rights set out as the legislators feel are appropriate.

One final comment: many laws have been very badly drafted (try reading our Income Tax Act sometime) because the writers were not very good--on the other hand, others are left vague on purpose to allow the law to change and grow to meet eventualities that were not expressly anticipated by the original legislators. It is not unusual that a law reaches a result that was not intended by the legislators at the time. This is why we have lawyers and judges and eventually why some laws are rewritten.

:cheers:

 

[a_majoor]

Moving back to the point of negative vs positive rights, the State is obligated to protect the citizens and their rights (a point Edward brought up; there being only four rights in the view of classical liberals), hence the establishment of protective services like the military and police.

Volunteerism is simply another way the citizens can protect their rights in the absence of the State. Since rights are considered inherent, your rights would remain even if the State is extinguished. This is a bit of a moot argument if you have no way of protecting your rights on your own in the absence of the State. Other forms of volunteerism to protect rights include good things like religious orders and churches offering medical care and charity to the poor and sick, or dubious things like vigilantes to protect property rights.

As for the case which is driving this argument, the State is using its overwhelming power to coerce the owners of a business (and in a related case, a religious order which provides medical care) to do something that is against the precepts of their religion. The mismatch is even more telling when you consider that virtually any contraceptive can be purchased over the counter at a trivial cost, and there is no mechanism which prevents the employees of the store (or patients of the religious order) from purchasing contraceptives on their own. Indeed, I don't believe that the objection to Obamacare by the plaintiffs was based on the use of contraceptives; only who was to provision them.

This would be something like sending a squad of policemen to your house to extort money to buy me an order of take out food. Why should you be forced to pay for my preference?

 

[FJAG]

This would be something like sending a squad of policemen to your house to extort money to buy me an order of take out food. Why should you be forced to pay for my preference?

:rofl:

You're kidding, right?

I think I'll leave this thread. There's no sense in my  :brickwall:

:cheers:

 

[Brad Sallows]

>Indeed, I don't believe that the objection to Obamacare by the plaintiffs was based on the use of contraceptives; only who was to provision them.

Belief doesn't enter into it; that was the issue: provisioning (inclusion in employer-funded plan), not use.  The plaintiffs just want to be at one remove.

In view of what could and could not be included in the ACA legislation in order to retain enough votes to pass it, and in view of the numerous carve-outs created afterward, it was petty and foolish of the administration to fight an unnecessary battle and risk an adverse decision with greater consequences.

 

[a_majoor]

Another example of how classical liberalism and people's rights are being slowly eroded away by the growth of unelected and unaccountable mechanisms attached to government (long article), and the increasing crisis of legitimacy for the institutions of government (which leads to a larger crisis as the institutions which make up our society weaken and erode):
(Part 1)

http://www.the-american-interest.com/articles/2014/06/15/britains-shrinking-executive/

Britain’s Shrinking Executive
Frank Furedi
Britain is leaping head first into the juridicalization of its politics. It will regret it.

Published on June 15, 2014

Francis Fukuyama’s essay on the problem of political and institutional decay in the United States (“The Decay of American Political Institutions”, January/February 2014) raises questions that transcend the experience of the United States. Europe’s political institutions are by no means immune from some of the corrosive processes he outlined. Thus stated a major British daily not so long ago:


The age of deference to distant and unseen authority has long passed. Indeed, Parliament is by no means the only institution that can no longer rely upon almost unconditional respect. The Church, the police, the media, the judiciary, the BBC, the Civil Service, doctors, teachers and, of course, bankers: just a generation ago, these would have been considered pillars of society. Yet they are all, to a greater or lesser extent, suffering a crisis of trust.1

Indeed, a Survey of British Social Attitudes, published in September of last year, indicated that fewer than one in five (18 percent) trust government leaders to place the interests of the nation above those of their party. A similar pattern is evident throughout the European Union. According to Eurobarometer opinion polls, the average level of trust in national governments and parliaments stands at 28 percent.

The decay of political institutions in America and, for that matter, in other Western democracies, has a variety of causes and symptoms. Fukuyama argues that the decay of American political institutions is the cumulative outcome of three distinct but interrelated factors. These are, first, the disproportionate power of the judiciary and legislature relative to the Executive Branch in the evolution of American political culture. Second is the growth of interest and lobby groups whose influence distorts the democratic process. Third is the rise of what he calls a “vetocracy”, the neologism meaning the compound outcome of the destabilizing influence of the aforementioned factors, which is expressed through the rigidification of the system of checks and balances to the point that it threatens the effectiveness of executive power. A recurring theme in Fukuyama’s essay is his attribution of responsibility for this regrettable state of affairs in part to the perduring influence of Americans’ distrust of government, and distrust of distant authority of all kinds.

Outwardly, at least, these specific vetocratic symptoms of political decay appear to be features of the American political landscape alone. In other Western democracies the business of government does not fall into a veritable state of paralysis while politicians of opposing parties posture to score points at one another’s expense. Neither Britain nor Germany nor even Italy go through the kind of annual budgetary game of chicken that regularly afflicts American politics. Nor does the European electorate share its American counterparts’ culture of suspicion and hostility toward government. European administrators and bureaucrats are not loved, but they do not face the opprobrium regularly directed at them in the United States by so fulsome a percentage of its electorate.

Yet despite some very important differences, both historical and cultural, many of the influences that corrode the integrity of America’s public institutions are increasingly discernable in the European political landscape as well. In political cultures on both sides of the Atlantic, judicial intervention and legal activism exercise ever expanding roles. The juridification of public life, the growing shadow of litigation over the conduct of administrative affairs, and the powerful influence exerted by advocacy organizations and corporate lobbies alike have become distinct features of contemporary European politics.

These features are visible to one extent or another everywhere in Europe, but interestingly it is most apparent at the level of the European Union. This suggests that if, in the fullness of time, the European Union succeeds in becoming the dominant component of a genuinely integral federal union, it may end up with an executive capacity far weaker than the historical norm of the European nation-state.

European democracies—with a few exceptions, notably Britain—have often been plagued by the combination of weak and ineffective executives and parliaments. After the tragic upheavals of the interwar era, these problems were often attributed to the incapacity of public institutions to respond and manage the demands of a volatile and polarized electorate. As a result of this experience the impetus for institutionalizing a system of checks and balances to limit the power of the executive was relatively weak. It seemed far less important than insulating governmental decision-making from the volatility of public opinion: The point was to make government less porous, not more so, so that it could more readily make and implement decisions.

After 1945 similar apprehensions led the political classes in Western Europe to adopt institutional and constitutional arrangements designed to insulate them from the pressure of public opinion. As Jan-Werner Muller remarked, “Insulation from popular pressures and, more broadly, a deep distrust of popular sovereignty, underlay not just the beginnings of European integration, but the political reconstruction of Western Europe after 1945 in general.”2 Thus during the 1940s and 1950s the cultural and rhetorical affirmation of liberal democracy coexisted with a determined attempt to control and restrict the scope for expressing public pressure. Motivated by the imperative of avoiding the upheavals of the interwar era and by an intense sense of suspicion of mass behavior, European elites “fashioned a highly constrained form of democracy, deeply imprinted with a distrust of popular sovereignty—in fact, even a distrust of traditional parliamentary sovereignty.”3 This did not necessarily make European democracy less democratic, but it did make it more Madisonian—in the specific sense of building buffers between plebiscatory energies and elite control.

More specifically, postwar European constitutional settlements sought to limit the role of parliament through assigning significant power to the judiciary and newly constructed constitutional courts. Technocratic institutions also gained significant influence, especially through the medium of the new and evolving European Union. The project of managing democracy to prevent a return to the bad old days of the interwar years was pursued most systematically in West Germany. There the aim of the 1949 Basic Law was to prevent the recurrence of dictatorship. West Germans’ experience taught them that future demagogues—and Hitler was after all an elected one—should not have an opportunity to whip up the emotions of the masses in order to manipulate them. But the ethos of protecting democracy from the people pervaded the behavior of political elites throughout Europe.

Muller went so far as to claim that “outside Britain the idea of unrestricted parliamentary supremacy ceased to be seen as legitimate.”4 However, even in Britain the supremacy of parliament came under challenge by forces it could not control. Observers have been struck by the dominant role acquired by the executive in its relationship to parliament. Back in 1976, Lord Hailsham, the Lord Chancellor of Britain, popularized the phrase “elective dictatorship” to describe the powerful influence that the government had over the legislature. Formally, the tradition of strong government associated with the Westminster model prevails to this day. But on closer inspection it becomes evident that the authority of British governments has steadily diminished since the 1970s.

 

[a_majoor]

Part 2:

The Westminster model is frequently regarded as a relatively unconstrained form of parliamentary democracy that provides the power and influence that an executive requires for effective decision-making. This assessment of the capacity of the Westminster system to concentrate formal power in the hands of a small number of players is indisputable. However, successive British governments have felt uneasy about or incapable of exercising the formal power at their disposal and have opted to outsource authority to other institutions. Such a course of action has not been forced upon them by the pressure of veto players. Rather, the willingness to share authority and even sovereignty has flowed from a calculation that, in its absence, governments need to draw on the authority of other institutions to retain their legitimacy.

One manifestation of this trend has been the rise of “quangos” (quasi-autonomous non-governmental organizations). These formally independent bodies have become increasingly active in the domain of policymaking and the supervision and management of public regulation. According to one estimate, by the end of 2007 there were 1,162 quangos in the United Kingdom, accounting for £63 billion, or one-tenth, of state spending.

Back in July 2009, before he was elected as Prime Minister, David Cameron expressed disquiet at the power that these unaccountable bodies had come to exercise over public affairs:


The influence of quangos can be seen in almost every part of our life. They determine what we can watch on TV and online. They control what our children are taught in school. They tell us what medicines we can take, and what treatments we can receive. The growth in the number of quangos, and in the scope of their influence, raises important questions for our democracy and politics.

The powers exercised through the Westminster model are also (often willingly) shared with the institutions of the European Union. So despite the formal concentration of power in the hands of the executive, its exercise is often timid and confused. That is likely why almost a decade ago, Anthony Sampson, the venerable analyst of Britain’s political anatomy, titled a 2004 book Who Runs This Place?: The Anatomy of Britain in the 21st Century.

The trend toward the outsourcing of authority to non-governmental and technical institutions is even more pronounced in continental Europe. The institutions of the European Union have successfully assumed responsibility for decision-making over a growing range of issues that used to be the prerogatives of national legislatures. This process of decision-making expressly liberates itself from the burden of accountability and violates traditional norms of the constitutional separation of powers. The EU Executive is a technocracy “vested with a monopoly of legislative initiative” that is closely allied to a likeminded judiciary.5

The significance of insulating decision-makers from the responsibility of democratic accountability became plain to see during the Eurozone crisis of 2011. The ease with which Lucas Papademos was appointed Prime Minister of Greece and Mario Monti as the head of Italy’s government is testimony to the effectiveness of Brussels’ administrative fiat. At the time numerous European observers mistakenly argued that the project of constructing a political firewall between the people and the institutions of government was simply a response to the pressures of market forces. Consequently, they attributed the soft technocratic coups in Greece and Italy to “neo-liberalism” and the relentless pressures of global markets. “The world’s statesmen no longer shape events but merely respond to them, in thrall of market forces”, argued a columnist for the Observer.6 In the same vein, another British analyst wrote of a “market coup” that has “suspended, if not overthrown, democracy in Greece.”7 No doubt the financial markets did place tremendous pressure on the governing institutions of Greece and Italy at the time. But the European Union’s political elites did not need to be “dictated to” by the markets; they were quite used to opting for administrative solutions to political problems.

At the time, European Commission President José Manuel Barroso explained the necessity of technocratic, insulated decision-making in the following terms: The non-democratically appointed governments of Italy and Greece have been installed “not just because they’re technocrats, but because it [is] easier to ask independent personalities to construct political consensus.” Barroso did not need to spell out what these “personalities” were independent of, since it was evident that their main virtue was that they were independent of their electorates. For Barroso, effective policymaking meant minimizing the distractions thrown up by the process of public accountability.

But we need to be clear: What drives the promotion of insulated decision making is not a self-consciously anti-democratic ethos; it is rather the reluctance of European governments to directly expose their authority to the test of public opinion. Sometimes this reluctance is excessively self-interested, to be sure. But in parliamentary systems, when government can fall in a trice, the volatility of public opinion, were it left to control the rise and fall of decision-making cadres, can indeed produce unexpected circumstances. And that is so notwithstanding the precaution represented by a professional and relatively insulated civil service.

The politicization of the judiciary and its adoption of an interventionist high profile in public life is no longer a unique feature of the American political landscape. The courts and judicial oversight of political decision-making not only limit the effectiveness of executive judgment but also now increasingly project themselves as alternative sources of authority. The expansion of judicial activism, and particularly of judicial review, in Britain since the 1970s is one of the most significant developments in British public life. During the past three decades the judiciary has come to play a key role in the promotion of constitutional reform. One critic of this development, the former Labour Home Secretary David Blunkett, wrote that judicial review has “rapidly become an entirely new arm of our constitution, operated by judges, through judges, and without any redress or accountability to Parliament.”8

The expanded involvement of the judiciary in political matters has not gone unnoticed. Supreme Court Judge Lord Sumption, in his November 2013 lecture “The Limits of Law”, pointedly warned about the growing “tendency to convert political questions into legal ones.” He also drew attention to the prominent role played by single-issue and lobbying groups in the pursuit of judicial activism. “Single-interest pressure groups, who stand behind great deal of public law litigation”, have “no interest in policy areas other than their own”, and so lack perspective as to how various pieces of legislation accumulate into a whole. He contended, quite bluntly, that, for “single-issue pressure groups, public law is politics by other means.”

Although commentators frequently focus on the tension between British government ministers and the High Court or the European Court of Human Rights, matters are more complicated than that. References to “tension” fail to covey the gist. Ministers who criticize the judiciary for meddling in the domain of parliamentary affairs are also prepared at times to hide behind the authority of the judiciary. Why? Because the recommendations and decisions made through the judicial process often appear to enjoy greater legitimacy than those advanced by politicians. At a time when trust in the authority of government is relatively fragile, politicians often look to other institutions to legitimize their policies and actions. But by so doing they erode their own authority and, worse, the authority of their own institutions, with the result of distorting carefully constructed constitutional balances.

Discussions that merely emphasise the loss of faith by the public in their institutions tend to overlook an equally significant development, which is that those in political authority often do not trust themselves. The one institution in British society that is today regarded as authoritative and independent is the judiciary and powers of inquiry. In public life, the pronouncements and conclusions reached by a public inquiry are regarded as more authoritative than those of a Prime Minister, not to speak of a church leader or newspaper editor.

Historically, the launching of a judicial inquiry was a rare and exceptional event. But in current times the routine demand that “something should be done” almost seamlessly leads to a call for an inquiry. Thus, one of the most unremarked yet remarkable developments in British public life has been the phenomenal growth of the inquiry as key institution of governance. Some 59 inquiries were launched in the field of health between 1974 and 2002: just two of them in the 1970s, five in the 1980s, and 52 between 1990 and 2001. This pattern is reproduced throughout the different sectors of society. In 2005, the Home Office Permanent Secretary Sir John Gieve warned that the “pressure for public inquiries is increasing all the time, and that there is a risk that we overdo it.”

Often the very plea for a public inquiry endows the individual demanding it with moral authority. Such a demand signals to many people a noble determination to seek the truth, expose the lies, and learn the lessons of why something has gone wrong. That is why, instead of demanding that the government adopt a particular policy or pursue a certain form of action, critics prefer to call for an inquiry. Critics do not want government to tend to and fix its own problems; that is not politically useful. That is why several observers note that the opposition Labour Party’s “default response to scandal is, increasingly, to demand an independent inquiry.”9 The call for an inquiry alone appears to legitimize the criticism of government action; in turn, governments use inquiries to show that they, too, are interested in the truth and thereby legitimate their own standing. Hence the dialectic of posturing that has sent the number of inquiries soaring.

The inquiry thus plays a significant role in addressing an issue that Max Weber believed constituted one of the fundamental problems of modernity. Weber believed that the process of legitimation—that is, how order is rendered valid—constituted the main political challenge facing modern society. In Britain, inquiries, particularly those led by senior members of the judiciary, are far less likely to be criticized for their conduct than most other forms public institutions. The judiciary is perceived as independent and impartial and hence relatively immune to the influence of vested interests; inquiries draw on those perceptions to restore political authority.

That such a recourse is necessary for that purpose is a direct reflection of the legitimacy deficit that now afflicts duly constituted democratic institutions. Recent inquiries into the behavior of parliamentarians, the Police, the National Health Service, the newspaper industry, and the BBC indicate that the legitimacy of public institutions is itself at issue. Time and again the judiciary is called upon to serve the role of a disinterested honest broker because politicians, policymakers, and representatives of different interest groups cannot be trusted to do the right thing. So, for example, during the phone-hacking scandal of 2011–12, the judicial inquiry was invested with the authority to put right a wrong. The Economist, in a July 24, 2011, discussion of the “great crisis of trust”, noted that 86 percent of the population wanted a public inquiry, and editorialized: “The British may dislike politicians, but they still have faith in a probe led by a judge.”

The reliance on judicial independence to restore political authority is not without its contradictions. The mushrooming of inquiries threatens to politicize the courts and expose the judiciary to conflicting interests. Barrister Jon Holbrook argues that judicial activism, which draws judges into the full glare of public life, is likely to put this institution under greater scrutiny. He contends that there is a “likelihood that the judiciary itself, as an institution, will also start to suffer the forms of fragmentation and loss of support that have affected other institutions.”10

Holbrook is right. In recent years criticisms have been made about the remit, conduct, and conclusions of inquiries carried out in the past. In September 2012, the Hillsborough Panel published its report about the disastrous loss of lives at a football stadium in 1989. Its findings called into question the conclusions of the official public inquiry conducted by Lord Justice Taylor back in 1990. The launching in October 2012 of an inquiry into the original inquiry into the abuse of children in care homes in Wales by Sir Ronald Waterhouse in 1996 indicates that the aura of judicial independence is no longer beyond question. The findings of an inquiry no longer mean the end of discussion and debate. The emergence of the “re-inquiry” suggests that the reputation of this institution may well suffer the fate of other public organizations.

 

[a_majoor]

Part 3

There is little doubt that the juridification of political life and the extraordinary role played by litigators in public institutions is far more advanced in the United States than in British and other Western democracies. At least formally, Western democracies have been spared the recurring phenomenon of a system in gridlock due to the absence of effective institutions and political culture necessary for collective decision-making. However, despite some profound differences in historical origins, political culture, and institutional dynamics, the numerous corrosive trends outlined here show that the gradual depletion of democratic legitimacy afflicts European as well as American institutions.

From a sociological perspective these developments can be interpreted as symptoms of the erosion—possibly the exhaustion—of political authority itself in Western societies. Insist on desacralizing the public sphere, as European intellectuals in particular have applauded in recent decades, and eventually the sinews of authority itself, based as they on emotion-laden traditions more than pure reason, will fray.

The potential threat of political decay is not a new discovery. The 1975 Report of the Trilateral Commission on the Governability of Democracies (later published as The Crisis of Democracy) was preoccupied with the apparent loss of legitimacy of the institutional arrangements that successfully managed capitalist economies during the postwar boom. One of the report’s most striking features was its recognition that, despite the absence of any serious political alternative confronting Western capitalism, the system was nonetheless in trouble. The authors, one of whom was Samuel Huntington, claimed that what is “in doubt today are not just the economic and military policies but also the political institutions inherited from the past.” They argued that, throughout the world, observers predict a “bleak future for democratic government.” Such predictions projected a world “of the disintegration of civil order, the breakdown of social discipline, the debility of leaders, and the alienation of citizens.” Even the most stable and successful democracies were said to be prey to the forces of disintegration, and “so observers speak of the Vietnamization of America and the Italianization of Britain.”

Now, given that this was written in the shadow of defeat in Vietnam, Watergate, the mainstreaming of the counterculture, and a robust expansion of Soviet predations into previously untouched parts of the world, the authors may perhaps be excused their anxieties. America, and the West with it, revived, after all, and won the Cold War. But maybe the authors were merely ahead of their time. The study grappled with the deeper problem of legitimacy and offered a variety of explanations to account for the demise of trust and authority that went far beyond the misanthropies of the moment. One of the most fascinating features of The Crisis of Democracy was its open acknowledgement of a lack of confidence about the ability of political elites to make democracy work. This apprehension based itself on an intuitive grasp of an historically significant development, which was the depletion of the cultural and moral capital of these elites. The report argued:


In recent years, the operations of the democratic process do indeed appear to have generated a breakdown of traditional means of social control, a de-legitimation of political and other forms of authority, and an overload of demands on government, exceeding its capacity to respond.

A quarter century later, and more than a decade after the fall of the Berlin Wall, these same themes returned to the fore in an April 2000 essay entitled “A Quarter-Century of Declining Confidence.” The essay explicitly commemorated the 25th anniversary of the Trilateral report. Again reflecting its contemporary context, no doubt, it was relatively optimistic about the durability of democratic institutions compared to the 1975 report. Its assessment was based on the conclusion that Western democracies faced no coherent alternatives—an extension of Fukuyama’s early foray into the “end of history.” Nevertheless, its conclusion was tempered by the realization that public life had become emptied of content and that the citizens of Western societies were alienated from their institutions:


[t]o say that democracy per se is not at risk is far from saying that all is well with the Trilateral democracies. In fact, public confidence in the performance of representative institutions in Western Europe, North America, and Japan has declined since the original Trilateral Commission report was issued, and in that sense most of these democracies are troubled.

Of course the troubles facing democracies have assumed a variety of different forms, but either indirectly or directly they expressed a reaction to the weakening of political authority, which in Fukuyama’s terms means executive authority more than any other form of it in a democracy.

The expansion of juridification has as its presupposition the corrosion of competing institutions. No society can for long survive without the workings of authoritative institutions. In the absence of a positive narrative of authority, Western societies on both sides of the Atlantic have increasingly sought to bypass the problem of legitimacy through rule-making, the elaboration of procedures, and the expansion of regulation. Rule-making has its own imperatives. When unconstrained by effective and authoritative institutions, it inexorably leads to more rule-making. In such conditions, litigators, single-issue lobby groups, and judicial activists come into their own—and help empty public life of any meaning or larger moral purpose.

It is therefore difficult to avoid the question of “what remains of authority?” in the West today. Thankfully, history shows that authority is not so much a finite resource that has been depleted but an accomplishment of cultural and social interaction and contestation. How relations of authority are constituted and challenged in the 21st century is perhaps the biggest issue facing Western public life. And yet Western democracies seem to have lost the appetite to discuss and debate the constitution and meaning of authority. Intellectual debate on this question is necessary if we are to regain public respect and legitimacy for democratic political authority. Without it, our problems are bound to deepen and recur.


1“The corrosive crisis of trust in our institutions”, Daily Telegraph, July 6, 2012.

2Muller, “Beyond Militant Democracy”, New Left Review (January/February 2012).

3Muller, Contesting Democracy: Political Ideas In Twentieth Century Europe (Yale University Press, 2013), p. 128.

4Muller, Contesting Democracy, p.149.

5See Perry Anderson, “Depicting Europe”, London Review of Books, September 20, 2007.

6Peter Beaumont, “It’s not just our leaders who are in a crisis. Democracy itself is failing”, Observer, November 20, 2011.

7Paul Vallely, “Europe is facing a fate worse than debt”, Independent, November 20, 2011.

8Blunkett, The Blunkett Tapes: My Life in the Bear Pit (Bloomsbury, 2006).

9George Eaton, “How many independent inquiries has Labour called for?”, New Statesman, October 16, 2012.

10Holbrook, “Public inquiries in the dock”, Spiked Online, November 13, 2012.

Frank Furedi is professor of sociology at the University of Kent in Canterbury, UK.

 

[Edward Campbell]

I agree with FJAG that there are, in addition to the fundamental rights (of which I assert there are only four but other may think there are more numerous), "those [rights] that are established as part of the compact between a citizen and his government," what he explained as "expected rights."

(I also, however, stand by my assertion that there are, amongst the rights created by the broad 'social contract,' many, far too many rubbish rights which are very, very popular but detract from the functioning of a truly civilized society. I would include most 'collective rights' (including language rights, in Canada) as secondary or even, in some cases, rubbish rights, which do at least as much harm as good. I think a good test of the validity of rights is to ask yourself one simple question: would I send my sons or daughters to fight and die to protect those rights for our friends and neighbours? Now look at the bottom bit of the 'rights' in the UN's Universal Declaration of Human Rights: are you willing to send your children to fight and die for "the right to work, to free choice of employment, to just and favourable conditions of work" (Art 23), "the right freely to participate in the cultural life of the community" (Art 27) or, may the gods help us all, "the right to rest and leisure ... and periodic holidays with pay" (Art 24)? If you are then you are a bloody fool. Those rights denigrate all the really important rights. They are rubbish rights. Now, ask yourself, will you send your son or daughter to fight and die to defend, say, the Official Languages Act, the Canada Health Act or the Canadian Labour Code? I think not. They are, indeed, part of the (Canadian) social contract, but they are not fundamental rights.)

That being said, the social contract is all important, as important as the fundamental rights because it is only when we have a properly functioning social contract that we can, and should expect (demand) that governments protect and defend our fundamental rights

Of the four fundamental rights (Life, Liberty, Property, Privacy - LLPP) I believe that Property and Privacy rights have done more to shape our societies (plural) than have Life and Liberty.

(I need to revisit another point I have often made ... there are three sorts of socio-economic/political cultures: liberal, illiberal and conservative). I think the most purely liberal and conservative societies (and there are few of each) have distinct advantages because they are able to establish and maintain the momentum needed to adapt and adjust while illiberal societies (most, maybe 190 of the UN's 200 or so members are illiberal societies) are doomed to fail.

I have, in the past, used a gravity well as a tool for explaining this ...

                                           

                                                                                                                  ... you have all played with one of these and you know that no matter how much initial velocity you apply to the sphere (or coin) it will, eventually, without fail, be dragged down.

My contention is that the most purely liberal and conservative societies have developed built in accelerants that keep them orbiting around the top of the gravity well while all the others must, eventually, either sink or adapt themselves into more purely liberal or conservative societies and, therefore, also develop that accelerant for themselves.)

I think that the accelerants are based, mainly, on a shared respect for he rights to property and privacy. It seems to me that even many illiberal societies respect life and liberty, but they are intrusive into property and privacy rights and I regard that as a failure.

My sense is that modern liberalism (as incorrectly defined by the US media, meaning now e.g. Kennedy, Clinton and Obama in America and the NDP in Canada) is a) very illiberal, b) in the ascendant and c) in danger of sacrificing our societies' accelerants and dooming us to sink to the bottom.

I believe that it is only by adopting truly liberal values that we (America, Australia, Britain, Canada, Denmark, Finland, Iceland, Netherlands, Norway, Sweden and a few others) can survive and propsper in the long term (centuries, not decades). (Pure conservatism is, in my considered opinion, only open to Confucians, what passes for conservatism in America is a dangerous fringe of illiberalism, more dangerous to the West than left wing statism.)

America is, in my opinion the worst place to look, right now, for sane discussions of rights and responsibilities.


Edit: typos

 

[FJAG]

. . .  what passes for conservatism in America is a dangerous fringe of illiberalism, more dangerous to the West than left wing statism.)

America is, in my opinion the worst place to look, right now, for sane discussions of rights and responsibilities.


Edit: typos

I swore to leave this thread but don't know how to make it stop showing up so here I am again.

You and I really agree on this one.

In the past I was a strong supporter of the US and especially republicanism. Over the last eight years or so (and especially the last five) I have spent much more time down there and I guess I pay much more attention to their politics because of that.

I still like the US and Americans a lot; its their politicians who make me want to throw up. I particularly find the entire GOP distasteful particularly because half of their platform comes from financial policies that favour the rich at the expense of the poor and because the other half of their platform comes from imposing a fundamentalist Christian philosophy on the country. (I'm ignoring for the time being the policy of frustrating Obama's initiatives regardless of their value to the country)

It's the Christian thing that gives me the biggest concern because there are such a large number of voters down there who have such beliefs and will vote GOP simply because of that.

My biggest concern is that this trend (which is, fortunately, mostly being held in check within the CPC) may at some point be raised here. I would feel much happier with our Charter of Rights and Freedoms in its preamble didn't contain the phrase "Whereas Canada is founded on principles that recognize the supremacy of God and the rule of law". Under our Interpretation Act "a preamble shall be read as part of the enactment intended in explaining its purport and object." Given the wrong legislature and the wrong Supreme Court and we could go down the same stupid road the GOP and the USSC have been heading. May the Flying Spaghetti Monster protect us all if that should ever happen.

:cold:

:cheers:

 

[stealthylizard]

I don't think we, as a Canadian society, would fall down that christian=party hole that is so apparent in the US.  Our politicians up here seem to try to hide their religious denomination, or at least make it not so obvious.  Even the mention of their religious beliefs loses them support from the general public during elections.  Some of us may see religious belief as a favourable trait, but not one that should be used to determine a politicians path of governance.  We don't (I hope) equate CPC being a party for believers in God, and the Liberals/NDP being a party for non-believers. 

Quebec may be the outlier.  I don't know how much religion plays into their modern day politics for protestant vs catholic leanings.