Anne Carson’s long poem entitled “The Glass Essay” relates how the narrator, having been dumped by her romantic partner, goes home to Canada to visit her mother (a difficult-sounding person–prone to rehashing old criticisms) and her father, now suffering from Alzheimer’s. Being a scholar, this narrator takes with her
… lot of books—
some for my mother, some for me including The Collected Works Of Emily Brontë. This is my favourite author.
She thinks about Emily and Charlotte Brontë, about herself, about her father and her mother. She feels strong emotions. For example:
Anger travels through me, pushes aside everything else in my heart, pouring up the vents. Every night I wake to this anger,
the soaked bed, the hot pain box slamming me each way I move. I want justice. Slam.
I want an explanation. Slam. I want to curse the false friend who said I love you forever. Slam. I reach up and switch on the bedside lamp.
But the poem moves toward something that I can only call transcendence. The narrator concludes with a perspective and a moral concern that goes infinitely beyond herself and her own circumstances.
But how can you transcend your circumstances if you are a modernist writer who favors concrete images and objective correlatives? How can you transcend earthly pain if you cannot invoke God? (“I am uneasy with the compensatory model of female religious experience and yet ….”) How can you transcend the injustices you have faced if you believe that your identity as a woman matters–that not everyone has the same problems, that differences are important?
One answer, Anne Carson suggests, is time. “Days passed, months passed and I saw nothing.” She finally attains insight, but only after a long wait. Another answer is hard thinking. The narrator probes herself, nature, and other people. She asks the hard questions and debunks her own answers.
Most importantly, you need the courage to believe and say things that are un-ironic, explicitly ethical, and close to cliché:
I saw a high hill and on it a form shaped against hard air.
It could have been just a pole with some old cloth attached, but as I came closer I saw it was a human body
trying to stand against winds so terrible that the flesh was blowing off the bones. And there was no pain. The wind
was cleansing the bones. They stood forth silver and necessary. It was not my body, not a woman’s body, it was the body of us all. It walked out of the light.
Buzzfeed’s Tanya Chen assembles lots of tweets and other quotes that analogize Bob Mueller to a frustrated college instructor. The American people are his students. Since we didn’t do the reading, we want him to explain it all in simple terms.
These are amusing responses, but they raise the question of what millions of Americans are really obligated to read. I once heard a Supreme Court justice say (to the approbation of the audience in the room) that citizens shouldn’t criticize judicial decisions unless they have read them, presumably in full. Some environmentalists despair that most people didn’t read the last big Intergovernmental Panel on Climate Change (IPCC) report for themselves. It seems outrageous that the President of the United States, who swore to uphold the Constitution, would fail a basic test of its contents. (For instance, he expects the judiciary to review an impeachment process.)
But once you put several of these assignments together, it makes for a daunting syllabus.
And it depends on what else you would do with your time. Instead of reading the Mueller Report, I have actually spent hours neurotically checking second-hand opinions about the report in order to root for the ones that say that Trump is in big trouble and boo the ones that say he’s been exonerated. That was a bad decision about how to allocate my attention. If I’d spent the same hours reading the report, I might have learned something. However, the text of the report would not change my opinions and behavior in a way that would matter for the country. So it would have been wiser still for me to spend my time not on the Mueller Report, nor on the endless second-hand commentary, but rather (for example) on the work of the astoundingly creative Anne Carson.
I start with faith that certain responsible summaries of the Mueller Report will give me what I need to know. I then waste time reading all the other commentary in the light of what I already believe. If I took Sean Hannity to be the responsible commentator instead of Lawfare or the New York Times, my behavior would be exactly the same but my conclusions would be the opposite. The problem is deciding who is the responsible intermediary, and you can’t do that with 100% certainty unless you read the original text for yourself. But again, it is not obvious that we are morally obliged to understand the Mueller Report with 100% certainty, when there are other things to do with our day.
The Great Professor in the Sky definitely expects us to do the reading. But I am not sure we are all obliged to take Professor Mueller’s class. We do face a mandatory exam called the 2020 election, but it will cover a whole lot of material, and you can do fine on it even if you didn’t take Mueller.
Your responsibility as a citizen–as distinct from your duty as a person–obliges you to collect information and insights about public affairs. (Your duty as a person is to read Anne Carson.) But there is an awful lot to learn about public affairs, of which the Mueller Report is only one sample. What bothers me is the implication that everyone should have mastered that particular body of material, when no one can understand everything that matters.
The Greens did very well in the EU elections. One interpretation is that a substantial minority of Europeans are now seriously focused on climate issues and voted Green to promote EU-wide climate policies.
But the Greens also stand for pan-Europeanism, multiculturalism, civil liberties, and the rule of law; and they have a specific demographic base. They are challenging or even replacing social democrats as a pillar of the center-left, without expanding the total center-left vote by much (if at all). It is not clear that they have a stronger policy platform on climate issues than the socialist parties in countries like Germany.
Therefore, a different interpretation is plausible. Perhaps the social democrats have fractured along class lines, and the Greens have taken away their college-educated vote, not because of climate but because of a whole basket of issues and values.
To explore that second hypothesis, I’ll focus on Germany–the birthplace of social democracy (in 1875) and the EU’s most important economy. There, the Social Democratic Party (SDP) came in third with less than 16%, surpassed by the Greens at 20.5%.
The SPD was traditionally a coalition of unionized industrial workers plus college-educated employees who were close to the welfare state (teachers, civil servants, and the like). These were the groups that stood to benefit most from an active state, and they were effectively organized in unions, professional associations, and the SDP itself. In other words, they didn’t just have votes but also organizational muscle. They played a major role in building the welfare state.
However, at least some of the party’s white-collar base has migrated to the Greens, who have become less environmentalist and more of a socially-liberal, cosmopolitan, center-left party. And some of the industrial workers have left the SPD for the right. The net result is a weakening of the organized center-left. Yes, the Greens are flourishing, but that is mostly at the expense of the SDP and reflects a fracturing of the social democratic coalition that helped to build the Federal Republic.
An EU election can be misleading if you want to understand the deeper state of a country’s politics. Only about 60% of eligible Germans voted this week, and they presumably focused more than usual on European issues. They certainly opted more than usual for small parties. Therefore, as second graph, I show how the whole German adult population responded when asked which party they felt closest to in 2016:
These data are now two years out of date but probably reflect the underlying conditions. The order is still the familiar one–Christian Democrats, Social Democrats, Greens, and then others–but the once-mighty SDP is already down to 26.2% in this survey. Left parties claim 58.7% of the total electorate but stand very far apart on issues. The traditional establishment parties (Christian Democrats, Social Democrats, and Liberal Democrats or FDP) claim just 64.2% of the vote in total. Both the left and the center are larger than the right, but the center-left is far from dominant.
This third graph shows how this pattern had evolved since 2002:
The change in the position of the Christian Democrats has not actually been huge. They have certainly seen some erosion since the immigration crisis, but they are only six points less popular than they were in 2002. The Greens stand not far from where they were in 2002, but they temporarily improved their position while the Social Democrats were sustaining their largest decline (2006-10). The right also rose, but mostly after the SDP had seen its major losses (2012-16).
That graph is consistent with the theory of a fragmenting SDP. However, trends in party support do not tell you how individuals shifted. Maybe the Greens grew by attracting former SDP members, but maybe those two lines converged for other reasons. The Greens declined and the right-wing grew after 2010, but we don’t assume that Green Party members defected all the way to the right.
As an imperfect test of the thesis that the SDP has indeed lost members to the Greens and the right, I graphed party support by income band for three selected years. I am assuming that if the SDP falls and the Greens or the right-wing rises within a specific income stratum, then people are actually changing their party affiliations in that way.
In 2002, the SDP performed best at three levels: the poor (who might benefit most from welfare), the fourth and fifth deciles (which may reflect unionized industrial workers), and the 8th and 9th deciles (where people with a lot of education may land). The Christian Democrats dominated among the rich but drew votes from across the spectrum. The Greens could not yet be described as an affluent party. Also (not shown here) they performed worse than the SPD among students. The right drew strongest from the lower-middle class.
By 2010, the Greens were more affluent and the SPD had lost a substantial amount of support in the upper deciles. The Greens were now also running even with the SPD among current students. The far right was weaker than it was in 2002, but I think that reflected a temporary change in the array of parties. The left drew support almost entirely from the lower income bands.
And by 2016, the right was much stronger–in third place in some of the lower income bands, behind only the SDP and Christian Democrats. Meanwhile, the Greens had become distinctly affluent and (again not shown here) they dominated the current student vote. They lost support only in the top income range, where the Christian Democrats were still ahead (although less so than in 2002).
These patterns are not sharp and dramatic; there is actually a fair amount of stability despite tumultuous times. But it does look as if the SDP has lost members to the Greens over lifestyle issues, and to the right because of nationalism.
The SDP and the Greens can certainly come together again in parliamentary coalitions, but at the grassroots, the coalition that sustained the German welfare state looks weaker than it was for decades. Also, I am not sure the Greens have the organizational muscle that the SPD had in its heyday, which means that their capacity to implement policy may be weaker.
If you care about environmental policy and social justice, you have to welcome the Greens. But the question is whether the center-left as a whole has sufficient capacity to govern.
I recently posted “marginalizing odious views: a strategy,” which was about a powerful and sometimes valuable tool for self-governance. When communities define specific perspectives as beyond consideration, they uphold norms without needing formal censorship. This is good when it happens to Nazis (for instance), but problematic when it’s used to block serious consideration of minority views.
I assume that marginalization is a perennial strategy. Its advantages and risks–especially as compared to a strategy of engagement–are also perennial. But the context does make a difference.
When most Americans got their news from three rather similar TV networks plus a metropolitan daily newspaper that had from zero to three local competitors, marginalization depended on the mass media. You could try to marginalize a position that you considered odious, or create space for a currently marginalized view, but your success would depend on what Walter Cronkite and his ilk thought. If a position wasn’t marginalized on the network news, it wasn’t marginalized. And if a view never got aired in the mass media, then it was pretty marginal even if you and your friends believed in it.
At the same time, the two major parties had overlapping national elites with similar educational pedigrees who, while disagreeing about some important matters of policy, still tended to agree about what was marginal. Along with the mass media, they adjudicated what belonged on the national agenda. Thus the terms of the game were clearly defined, even if the rules were problematic because they gave too much power to homogeneous elites.
Now that the media landscape is highly fractured, we live in many separate epistemic communities. What is mainstream in one setting can be effectively marginalized in another. Just to name one example, the phrase “illegal immigrants” is pretty much marginalized in both my city and my university, but it is the standard phrase across large swaths of America.
The fact that our national discourse is polarized and balkanized has been widely noted, but I want to emphasize the consequences for a strategy of marginalization:
It is now virtually impossible to marginalize across the society as a whole. Given any opinion, some people are comfortably expressing it right now in public (online) to their fellow believers.
It is now much easier to marginalize within a community in which you in are the mainstream. The temptation to say, “We don’t say that here” is very high when that can be so successful.
There is also a constant temptation to demonstrate that each community is biased by forcing it to confront views that it is trying to marginalize. That makes the community look intolerant to external audiences. For instance, if a university seems pervasively liberal, invite Milo, watch the reaction, and cry “Censorship!”
Since being marginalized feels like being censored, more people have the experience of censorship in various specific settings where their own views are unpopular. In fact, almost everyone would be marginalized somewhere.
The same statements often have a double effect. For their proponents, they reinforce shared norms. For their opponents, they serve as examples of what must be marginalized. For instance, Rush Limbaugh clearly has two audiences: conservatives who like what he says and liberals who are appalled by quotes that circulate in their networks. (Both reactions benefit Limbaugh by bolstering his prominence.)
The strategy that is furthest from marginalization–trying to learn from other people while sharing your opinions with them–is harder than ever, because we all hide in homogeneous communities.
I continue to think that marginalization has a place in politics. Not every opinion deserves respectful consideration. Communities gain coherence and value by drawing limits around what they will consider. However, I suspect that a fractured media system makes marginalization too tempting and persuasion too difficult, with costs for democracy.
There is a new page on Wikipedia about Civic Studies. It’s not about civic education* but about the developing “interdisciplinary field that empirically investigates civic engagement, civic education, and civil society.” Civic Studies also strives to “influence the social sciences and humanities in general to take the perspective of intentional human actors–people who reason and work together to improve their worlds–in addition to institutions and impersonal social forces.”
I wrote all the text that’s on this page so far, but I’m hoping it will be a living document to which others will contribute.
*For civic education, you could consider the Stanford Encyclopedia of Philosophyentry by Jack Crittenden and me.
If you looked out at the National Mall on any Inauguration Day from 1944 to 2012, you might conclude that Nazism had been effectively marginalized in the USA. The president who was being sworn in might be leading a war against actual Nazis (Roosevelt) or might be a veteran of such a war. The growing array of monuments, memorials, and museums along the Mall included explicit repudiations of Nazism (the United States Holocaust Museum, the WWII Memorial), and lots of images and statements at odds with Nazi ideology. Even a white-supremacist like Jefferson was represented–selectively but not falsely–as a proponent of values antithetical to Nazism. And certainly no one would feel the need to explain why no Nazis were invited to this party.
As further evidence that Nazism was marginalized in the USA between 1941 and 2017, consider that:
No censorship was required to keep Nazi materials off respectable shelves, except sometimes as historical evidence of evil.
The word “Nazi” was an epithet, not requiring an explanation as to why it was bad.
People who shared a lot of beliefs with Nazis remained prevalent, but they denied that they were Nazis or resembled Nazis.
The word got misapplied as an insult to people who didn’t deserve it. The debate was not about whether it was OK to be a Nazi but whether it was OK to call someone that.
The word gained a penumbra of moral seriousness and shame. Joking about it was generally off-color, although it did produce some brilliant satire.
[We did still read Heidegger and Carl Schmitt, which shows either that the marginalization was incomplete or that it’s possible to make judicious exceptions.]
Marginalizing Nazism was an achievement. It was a form of self-governance, the imposition of values on a population by the population. Even if you’re not a purist about First Amendment principles, you might still agree that successful marginalization of an odious view is more effective than state censorship. It is also in some respects safer, because states that censor may easily abuse that power. (And censorship is ultimately backed by the gun.)
Although marginalization need not employ state censorship, it does make heavy use of authoritative rhetoric, rituals, social norms, selective invitations to speak, and refusals to listen. It is incompatible with engaging alternative views, listening to learn, being open to changing one’s mind, seeing the good in everyone, etc. It explicitly repudiates dialogue. We can either engage in dialogue or we can marginalize; we can’t do both to the same target.
As such, marginalization can be misused. For instance, socialism hasn’t been fully marginalized in the US since the Palmer Raids of ca. 1919–but close. Many people who share views with actual social democrats or democratic socialists deny that they do. In many circles, the term “socialist” suffices as a critique and doesn’t need an argument–it functions as an epithet.
Again, the marginalization of socialism has never been complete. There have always been socialists in the US with significant influence and secure positions. Just lately, we are seeing a real resurgence. Still, the degree of marginalization has been sufficient to distort the public debate. I happen to be mildly skeptical of socialism on several grounds, yet it seems obvious that the policies employed in thriving countries like Norway and Germany deserve consideration in the USA–and are, in fact, sometimes employed here. Marginalizing the word that best describes those policies prevents the public from considering them on their merits.
The temptation to marginalize is felt across the spectrum. For instance, neoliberalism is perhaps the reigning orthodoxy of our era. Yet no one calls himself a “neoliberal.” The word is almost always used in circles where people oppose market capitalism, as an epithet. It substitutes for an argument. It is hard to define “neoliberalism” in a way that (a) accurately describes the views of the alleged proponents, and (b) is actually bad. A commitment to personal freedom is something that alleged neoliberals would acknowledge but that also seems attractive. A preference for corporations over people is something that they would deny. Once you propose a precise and accurate definition of neoliberalism, you are engaged in an argument rather than marginalizing anyone–but you risk losing the argument. Now you are no longer just charging opponents with being neoliberals but considering whether choice and competition might be helpful under specific circumstances.
To the target, marginalization feels like censorship. When a university refuses to invite a certain kind of speaker to give a formal talk, or disinvites someone who was invited, that is not–in an important, technical sense–censorship. The university has a right and even a responsibility to invite selectively. However, when the university is part of a larger movement to marginalize a given view, then holders of that view face what feels like censorship when they are not invited. If those people are Nazis, then their marginalization is an achievement. But if they are merely out of step with dominant views on college campuses, then they may have a legitimate complaint.
In short: marginalization is a powerful and appropriate strategy when the target deserves it. The power to marginalize is a political resource. It is a form or aspect of governance. But its power is so tempting that we must be careful not to abuse it. One reason not to marginalize any given view is that we may then fail to learn from it.
I didn’t know how women and men differ in their views of abortion or how opinions have changed over time. So I ran the numbers using American National Election Study data since 1980.
Here are the strong pro-choice and anti-abortion views by gender:
More people favor always allowing rather than never allowing abortion. Differences by gender are small and not significant, but women are currently just a bit more likely to take both the strongest pro- and anti- positions. The trend over time is slightly favorable to choice.
The graph is noisier if we add a middle view as defined by the ANES (abortion should be legal in cases of rape, incest, or medical risk to the mother):
Making abortion sometimes legal is the most popular position, and men are somewhat more likely than women to adopt it, but again, the gender difference is small.
This week, the Tufts Trustees voted to grant me tenure and make me a full professor. I am very grateful to them, the Political Science Department (which is my tenure home), the Tisch College of Civic Life (which will remain my main base) and its dean, Alan Solomont, and the other people–known and anonymous to me–who were involved in advancing and reviewing my case.
I have been working full-time in universities (Maryland and then Tufts) since 1993. However, I don’t believe I should have held tenure until now. Tenure means job security for teaching. It’s a way of protecting instructors’ intellectual freedom. Until now, I have never held a teaching position. More years than not, I’ve taught at least one credit-bearing college course, but not as part of my paid employment. Instead, my salary has come from external sources (philanthropy, contracts, and–in the early years–a state appropriation). These funds have supported me and my colleagues to serve external constituencies with research and organizing. That kind of work must be contingent on funding and performance or it would turn into a sinecure.
So really the big change in my life is that I will be teaching virtually full time, starting in 2019-20. One motivation is our new Civic Studies major at Tufts, which is a major commitment of mine. This major is also part of a more general strategy of making the study of civic life a core academic focus at Tufts, which is another personal commitment for me and a key strategy for Tisch College. At the same time, I am looking forward to the role of a teacher/individual scholar, because that should allow me to explore certain topics more deeply than I have so far–mainly, topics in political theory.
My career is unfolding in backwards order. My degree is in a humanities field, philosophy. Humanists usually start by teaching alone and doing single-authored research: in short, reading, writing, and presenting. Some of them gradually begin leading departments, serving on committees, planning conferences, conducting collaborative and interdisciplinary research projects, and interacting with publics.
I started in an externally-funded center within a state school of public policy, where our work was applied, interdisciplinary, collaborative, and done in public. From an early age, I was heavily involved in working with other people. I was rarely in a classroom but almost constantly on the phone or email, communicating with peers. My most significant publications were co-authored; the Civic Mission of Schoolsreport lists 60 authors.
I will not give up that kind of work but I do plan to spend more time teaching and conducting individual research. If this backwards order makes any sense intellectually, the advantages will be: 1) Breadth–I never sought tenure in a discipline that would have expected me to demonstrate deep specialization, but I had to learn a bit about a lot of things, and 2) Experience in how knowledge, power, money, networks, and organizations relate to each other in the 21st century. I’m hoping to make that second topic a focus of my research.
The immediate plan is to keep doing the collaborative work that I’m doing now (so don’t be alarmed if you are a collaborator) while developing several new courses in 2019-20. I have completed a book manuscript that is under review, so if that goes reasonably smoothly, I will feel free to focus a lot of attention on curriculum and pedagogy during the next academic year. I also have a sabbatical coming up, and I plan to spend that time learning network science and continuing to collect network data of different kinds, toward one or two books on networks and political/moral thinking.
It’s very rare for someone to switch to the tenure track after 26 years in the business. It’s like lifting a heavy locomotive and putting it down on different rails. Tufts has been tremendously supportive, flexible, welcoming, and creative in making this possible in my case. I feel a deep sense of gratitude and loyalty to this institution and my colleagues and students.
“A fox knows many things, but a hedgehog knows one important thing” — Archilochus
This proverb is in the news lately because Philip Tetlock has shown that foxes (flexible and curious generalists) are much better at predicting events than hedgehogs (specialists who hold deep expertise). See David Epstein’s Atlantic article on Tetlock, and see Axios for a current competition funded by the US intelligence agencies to test his theories.
Tetlock draws from Isaiah Berlin’s 1953 essay, which is light but offers some insights, I think, about specific authors. Berlin argues that Tolstoy was psychologically a fox but believed–for theological/ideological reasons–that we should all be hedgehogs. Our one big idea should be the Imitation of Christ. This tension was at the heart of Tolstoy’s books and life. I also endorse Peter Hacker’s view that Wittgenstein was temperamentally a hedgehog who forced himself self-consciously to become foxlike in his late work.
If you take the proverb literally, it seems more impressive to be a fox. The fox uses its brain to hunt and escape, whereas the hedgehog just instinctively rolls up to take advantage of its best physical asset, its spines. But the metaphor is loose. Human hedgehogs are among our deepest, most original thinkers. They are the ones with the discipline to construct whole, coherent worldviews. They don’t merely employ a strategy but create it.
In contrast–and I write this as very much a fox–foxes can be ad hoc and derivative, eclectic in a bad way. A fox can employ the available ideas that seem to fit the situation without generating any new frameworks for others to use. A fox can be a jack of all trades, master of none. We foxes need hedgehogs to develop new ways of thinking, from which we borrow superficially and pragmatically.
But it is interesting that the hedgehogs are so consistently wrong about what will happen next. They are more likely to suffer from confirmation bias. They can make any data fit their theory. And they are worse than foxes at recognizing exceptions, tradeoffs, and zones of uncertainty. They lack phronesis, practical wisdom.
I therefore think it’s a problem that hedgehogs have an advantage in the competition for attention. If you are associated with one big idea and you keep hammering away at it, you have a “brand.” People turn to you to say that one thing, even if they don’t agree with it, and so your fame rises. You must compete with the other people who say the same thing, but if you’re first or more effective at communicating it, you can own the space.
So as not to offend anyone alive, I’ll use the case of my late colleague Ben Barber, who was early to revive the idea of “strong democracy.” (More democratic engagement is always better; the good life is lived in public; liberalism is too individualistic; etc.) He wrote several best-sellers, and I attribute his success in part to his capturing a particular brand. For courses, debates, conferences, etc., you may need someone to say, “More democracy!” Barber cornered that market.
Temperamentally, I am with the foxes. As soon as I write an argument for anything, I immediately become fascinated by the arguments against it. I have a limited attention span and jack-of-all-trades tendencies. I frequently disappoint practitioners and advocates, who know that I have written in favor of campaign finance reform, public deliberation, service, or civic education and want me to say it again to a new audience with more conviction. In fact, I am almost always on the verge of apostasy and retraction.
I really do admire the hedgehogs. But I’ll say a few things in favor of foxes.
First, the moral world is immensely complex, because it emerges from myriad human interactions and takes the form of communities, cultures, and institutions that overlap, interrelate, and become loaded with historical resonances. Thus an adequate moral theory is almost certainly partial, inconsistent, and ad hoc.
Second, acting like a fox keeps you mentally alive. It may be a self-indulgent concern, but I fear ceasing to think. Even the greatest hedgehogs, it seems to me, have stopped their quest for knowledge. They already know, and know that they know, and are done.
I’ll also say one thing against foxes. At least in folkore, a fox is a solitary hunter. What if you also like people and feel loyalty to groups of peers who share goals and missions? Then you cannot simply act like a fox.
To switch metaphors, Keats admired the “quality” that forms a “Man of Achievement especially in Literature and which Shakespeare possessed so enormously—I mean Negative Capability, that is when man is capable of being in uncertainties, Mysteries, doubts, without any irritable reaching after fact and reason.” I also admire Negative Capability, but it is a virtue of the poet, not the ally. Negative Capability is good for writing fiction that explores many different perspectives; it is not so helpful for co-writing a mission statement for an organization and then following through.
So I would like to be a fox who is helpful in a pack. The question is to what degree that’s possible.
(Disclaimer: this post is the result of reading some work by Tommie Shelby and Erin Kelly but not yet wrestling with either author’s views sufficiently or examining the larger literature on expressivism in law. If you were a peer-reviewer, you should reject this post.)
A society has a right and an obligation to express what is just through the criminal law. One reason is that public statements about what is permitted and forbidden can influence behavior for the better. But sometimes laws are not effective means of shaping behavior. Even then, it is important for a community to express justice as accurately and completely as it can, and the criminal law is a valuable vehicle of expression.
Public expressions of justice must often be accompanied by penalties. Otherwise, laws can reasonably be interpreted as mere lip-service. If, for example, the law says that everyone must pay taxes, but oligarchs routinely get away with tax evasion, then the law is saying that oligarchs don’t have to pay taxes. The failure to punish them conveys a view of justice that is unfair.
Many things are wrong but should still be legal. Awful but constitutionally protected speech is an example. The scope of the law should be limited both because of the fallibility of any government and because individual liberty is a great value. (We’re not free if we’re only allowed to do good things.) Nevertheless, there remains a large domain of actions that are bad enough that the state should express their wrongness by prohibiting them and enforcing the prohibition with penalties.
Even a partially unjust regime can and must express justice through the criminal law. Its failures do not invalidate laws that it enacts and enforces, if those laws are just. An exception may be a pervasively evil regime. For instance, a Nazi law court could render the correct decision in a case of rape or murder, but the very existence of that court is so offensive as to render all of its verdict moot. The victims of even real crimes cannot get justice from Nazi judges. But that reasoning does not apply to courts in societies, like ours, that harbor a great deal of injustice.
Public statements about justice must be deliberated. This is not because deliberation equals justice (a proceduralist view). Justice is justice. Rather, we must deliberate because hearing and responding to alternative views is our best method of discovering what justice demands. Also, the legitimacy of a public (as opposed to an individual’s) statement of justice depends on whether each of us had a chance to influence it with our voice.
Our legal system violates the expressivist principles summarized so far. The features that violate this theory are: racialized mass incarceration, rampant plea-bargaining, degrading punishments (prison uniforms, refusal to provide education, tolerance for sexual violence, stripping prisoners of civil rights), frequent imprisonment of people with mental illness, and a tendency to hide the whole system away from public view.
Mass incarceration of people who are racial minorities and/or poor and/or mentally ill clearly expresses a view that is incompatible with justice–that those people are not equal. We wouldn’t have the same system if most of the prisoners were middle-class and white.
Racialized mass incarceration also blocks a satisfactory national discussion of justice. In some communities, incarceration is common, and in others, it is virtually absent; but since they are separated by race and class and have unequal amounts of political power, they are very unlikely to deliberate together.
Replacing jury trials with plea-bargains removes any public deliberation about particular cases and prevents each verdict from saying anything at all. The outcome of a case is a function of the perceived likelihood of conviction, the defendant’s tolerance of risk, the prosecutor’s interest in conviction, and the cost of a trial, not anyone’s view of what is deserved.
Hiding the whole system away excuses the public from deliberating about particular cases and about policy. You can easily turn a blind eye to the criminal justice system even though our prisons house a population as big as a state.
I would not go so far as to claim that an expressivist theory of criminal law is completely adequate. We can imagine a system that does a good job of expressing justice but fails other tests, such as the utilitarian criterion of doing the most good for the greatest number. For instance, maybe it would be better to cancel trials that don’t affect behavior and use the money saved for prevention. I’m sufficiently pluralist (or wishy-washy) to suspect that utilitarianism, contractarianism, classical liberalism, Foucault, and other views all offer valid insights.
But I would submit that an expressivist theory explains some of what is so badly wrong with our system.
