June 24, 2010

Nothing Works Anymore


Obama’s offshore drilling exploration moratorium was typical of him – too late, too limited, anodyne, more talk than action, taken only under extreme political duress though he obviously didn’t believe in it, so he couldn’t achieve any goodwill from it anyway. Yet even in that meager way it’s still something worthwhile.
Or it was for a few days before a federal judge, at the request of a minor special interest, the ferries serving drill workers, overturned the moratorium, declaring it “arbitrary and capricious”. People are having trouble following the judge’s reasoning, since it’s self-evident that deepwater drilling cannot be done safely and with all the risk accounted for by voluntary market participants. In principle, not just an exploratory moratorium but banning it completely is exactly what the executive branch should do as steward of these waters and resources. The only thing which looks arbitrary and capricious is the judicial activism here. (Unless you look at the judge’s oil investments. Then perhaps the decision might not seem so arbitrary.)
Corporatist judicial activism has been on a roll since the Citizens United decision. The SCOTUS seems especially keen to smash all attempts to impose any sort of rational limits on election buying, no matter how modest. Now, there’s no doubt about the “supreme” court’s conscious malevolence; four of the cadre are hard-bitten corporate activists, while the other four including Stevens (leaving out Sotomayor on account of insufficient data as of yet) are at best passively corporatist*, with demented prima donna Kennedy flipping back and forth based on whatever lets him be the center of attention. 
[* I’ve previously proposed that the right classification of judges is not something phony like “strict” vs. “loose” construction, let alone idiocy like conservative vs. liberal.
Rather, since the struggle of freedom and humanity vs. tyranny as crystallized in the struggle vs. corporatism is the defining issue of our time, and since the courts are today a lawless no man’s land where the civil war is already being fought out with one judge ruling that 2 + 2 = 4, while in adjoining courtrooms on either side his “colleagues” are saying it equals 3 or 5, so it follows that the only meaningful classification of jurists is as: either corporate activists on the bench (like the Citizens United majority), or as passive corporatists (those who accept corporate personhood and the basic corporatist structure, but who oppose judicial activism on its behalf), with perhaps a diminishing few public interest advocates and even anti-corporatists here and there.]
The SCOTUS as a whole is by now firmly against the people and for the tyrants. We should always remember that just as we can never expect there to ever again be good legislation from the Congress, so we can’t expect any kind of systematic good from the courts, only evil.
But even though the court is malevolent, by now money is so entrenched in the electioneering process that these decisions will probably make little practical difference. Here as everywhere else extortion is institutionalized.
But even given this level of conscious malevolence and entrenched corruption, there are still those like Glenn Greenwald whose public interest good will seems strong enough, but who often remain mired in the process mentality, such as in Greenwald’s case his myopic fetishized version of the 1st Amendment. As I said in my post on Constitution and Process, this fetish of process over substance and result ends up betraying the substance and helps guarantee a result which makes a repugnant mockery of the original ideal. The 1st Amendment, like0 the Constitution itself, is not a suicide pact, but the process myopics seem intent on making it one.
So it’s not just malevolence, but process issues as well which congeal as a blockage in many minds to constitute an objective barrier to political transformation.
Every attempt at reform is always opposed by one or more selfish, sociopathic special interests. The result is always at least one versus zero (the atomized mass which today passes for “democracy” and the public interest equals zero). In the case of the upset drilling moratorium it wasn’t even Big Oil who brought the suit (though I suppose they financed it), but some rinky-dink boats which ferry oil workers to the rigs. So there will always be someone, no matter how small, ready to assert the aggregate corporate prerogative against any value no matter how critical, like the very life of the sea itself, or humanly majestic, like democracy and the public welfare. These are all helpless in the clutches of this system.
I’ve written plenty of times about malevolence, and that will remain my focus. But for today I wanted to point out how the problem runs even beyond malevolence. I especially reject the notion that if the problem is “just” the criminal intent of gangsters, we can simply undertake the “reform” of replacing them, but otherwise leave the structure intact, and everything will be fine from there. No. The problem is the structure. Once we have  this combination of outdated structures and longstanding organized crime having suffused the structure with its mindset for so long and so deeply that the structure has become a veritable kleptocracy, and all institutions and processes within it are systematically corrupt, hijacked and suborned, or just plain rotted, the whole thing is beyond reform and beyond redemption.
So for the sake of argument, for the rest of this post let’s assume no criminal intent but simply the “innocent” process mentality and the “just doing my job” mentality. We can see how, no matter where we turn, no matter what we try, there’s always a seemingly insurmountable impediment to reform. We are bottlenecked. Even leaving aside actual assaults like the health racket mandate or “austerity”, nothing can be fixed.
I was thinking about this as I pondered the moratorium overthrow when I read a fascinating chapter early in Tocqueville’s The Ancien Regime and the Revolution. In Book 1, chapter 4, Tocqueville describes how the institutions and laws converged in all European countries, especially France, Germany, and England. By the 18th century, although everyone still was acting in accordance with the same Middle Age forms which once used to be progressive*, these now constituted stagnation. They were blocking movement, innovation, freedom.
[*I’ll take this opportunity to introduce one of my basic ideas. I think all historical threads (forces, ideas, entities) follow at best a life cycle of four stages. These stages are those of discovery, or when it is first evolving and pioneering; the progressive stage, where it reaches the best combination of healthfulness and utility; the decadent stage, where although its “quantity” may still be increasing, its quality stagnates, its usefulness hits diminishing returns, and it becomes a drag on motion and health; and the malevolent stage where all its effects are actively counterproductive and harmful to the people as a whole. (Throughout I’m of course speaking of the welfare and vibrance of the people, not of racketeers; their “welfare” tends to improve as the life cycle becomes decadent and then malevolent. Indeed their toxic flourishing is inversely proportional to a thing’s existential benevolence.)
Some obvious examples of spent life cycles are those of oil-fueled industrialism, mass capitalism, oil-fueled technology. Even the corporation may have had its brief progressive period, when it was still restrained within the bounds of the Constitution, before it quickly skipped decadence completely and became malevolent. Mass democracy first became corrupted and decadent and now, in its hijacked “inverted totalitarian” form, pseudo-democracy, is actually malevolent because it continues to prop up faith in vain reformism.]
So let’s read some Tocqueville. In several places I find myself substituting “Founding Fathers” for “Men of the Middle Ages” and today’s kleptocracy for sclerotic 18th century European structures.

It is no part of my theme to relate how this former European constitution gradually lost its power and fell into decay. I simply state that in the 18th century it was in partial ruins everywhere. The disintegration was generally less pronounced in the east of the continent and more so in the west but every country manifested this process of aging and disintegration.

This gradual collapse of the institutions peculiar to the Middle Ages can be followed in their archives. We know that each manor owned registers of land ownership called “terriers” in which, through the centuries, they recorded the boundaries of the fiefs, the holdings paying rent, the dues payable, the obligatory feudal services and the local customs. I have seen the terriers of the 14th century which are masterpieces of drafting, clarity, precision and intelligence. They become obscure, ill-formed, incomplete and muddled as they move into more recent times, despite the general progress of knowledge. It would appear that political society drifted down into barbarism at the very time when civil society was finally achieving enlightenment.

(I interject, this sounds similar to the current disposition of mortgage notes, specifically that the MERS regime was set up to systematically hide and lose those notes while the mortgages themselves became discorporated quiddities meant to fictively constitute “securities”, MBS and CDOs.
It’s part of Hernando de Soto’s depiction of the collapse of the rule of law itself through the destruction of the paper files.)

Even in Germany, where the old European Constitution had maintained its original features more effectively than in France, some of the institutions it had created were already everywhere being destroyed. But we can best judge the ravages of time less by observing its losses than by viewing the state of its remaining features.

Those urban institutions, which in the 13th and 14th centuries had transposed the chief German towns into small, prosperous and enlightened republics, still existed in the 18th but offered nothing more than an empty show. Their legal conditions appeared to be as vigorous as ever – the magistrates they appointed had the same names and appeared to perform the same functions – but the activity, energy, shared patriotic feeling, virile and productive virtues which they inspired had vanished. These ancient institutions had inwardly collapsed without losing their original shape.

All the powers of the Middle Ages that still remained were attacked by the same disease and displayed the same disintegration and the same slow decline. Still more, everything which was associated with the old constitution and had retained an almost clear imprint of it, without exactly belonging to it, directly lost its vitality. From that contact the aristocracy became infected with senile decay. Political liberty itself, whose achievements had permeated the whole Middle Ages, appeared to be stricken by barrenness wherever it still bore the particular characteristics it had gained from the medieval period. Wherever provincial assemblies had preserved their ancient constitution in an unchanged state they halted the progress of civilization rather than fostered it. It might be said that they were alien and almost impervious to the new spirit of the time. The antiquity of these institutions had not made them respected. Quite the contrary, they lost any credit even as they grew old and, strange to relate, they inspired all the more hatred as they seemed less capable of causing harm through their increasing decay. “The present state of things”, said a German writer, a contemporary and friend of this old regime, “appears to have become generally painful for everyone and occasionally contemptible. It is strange to see how people now judge unfavorably everything that is old. New impressions come to light at the heart of our families and upset their orderliness. Even our housewives no longer wish to put up with their old furniture.” Yet in Germany, at the same time as in France, society was thriving and enjoyed a growing prosperity. But everything which was alive, active, and creative was recent in origin, not only new but in conflict with the past.

Royalty shared nothing in common with the royalty of the Middle Ages, possessed other powers, occupied another position, had another spirit and inspired other feelings; the administration of the state extended everywhere, settling upon the remnants of local powers; the hierarchy of public officials increasingly replaced the government of the nobility. All these new powers acted according to procedures and followed ideas which men of the Middle Ages had either not known of had condemned. These had their links in fact to a state of society beyond their experience.

Let’s look briefly at a few examples. Again, I’m trying to leave out the main factor, intentional gangsterism and greed, and just mention the underlying structure and process factors, as well as some “innocent” motivations.
We started out with Obama’s energy policy, if one wants to call it that. Really Obama has no energy policy other than continuing the doomed status quo of corporatism, the technology cult, and massive consumption. It’s these very prejudices, ingrained far beyond the imperatives of greed, which help set up such objective psychological barriers to a rational energy policy. There’s also the refusal to accept resource constraints like Peak Oil, this refusal bolstered by all the dogmas and delusions of economic ideology (as well as the delusion that economics is a science). There’s also the tremendous sunk cost of cars and suburbia and the mass-energy infrastructure, entrenched Big Oil and Big Coal (not referring to their greed but their silhouette on the cultural horizon) and the new ethanol racket, trying to become Big Ethanol through the nurturing of its father, Big Ag and its mother, corporate environmentalism.
All of these represent big chunks of existence whose gravity serves as a form of propaganda in itself. People look at the sheer size and media presence of structures and become resigned, even if they wish they could sweep the landscape clean. They end up passively embracing what they consider laws of being.
As for the legal laws, everywhere you look these are set up to put up massive passive resistance to change even where the enemies of change don’t actively attack. Thus the 2005 and 2007 energy bills massively entrenched existing rackets and set what are meant to be “accepted” levels of renewable energy development. Since these were bipartisan bills enacted with great media fanfare, they’re meant to encode the status quo energy regime in our very spiritual and political DNA. Obama’s would-be energy bill is meant to continue this totalitarian process, adding cap and trade to the racketeering mix. (Needless to say, it would do nothing to mitigate greenhouse gases nor is it meant to.)
The same enshrinement exercise played out with the Bailout, with the health racket bailout, and is now continuing with the sham finance bill. The way the bills have been negotiated is also meant to further entrench the new legislative paradigm (there was a time where majorities sometimes really did want to legislate as per their constitutional mandate; no more) where everyone commences in the full understanding  either that nothing in the Status Quo will be changed, or else its assault on the people will be escalated. Maybe nobody even knows which of these it’ll end up being; either way the process is to put on a political show, with various cadres either delegated or self-appointed to play doomed heroes or misdirectional villains, while in the end they try to smear out responsibility for the real villainy among themselves while the flacks call it all “progress”. I stress that although everyone’s intent may be villainous, they’re also enshrining a process whose mechanism is meant to be immutable. Even if you came into Congress sincerely seeking reform, you’re quickly made to understand that that’s not Congress’s business, and you can either fall into line or get out. So far they’ve all fallen into line.
A similar but cross-branch process boondoggle is the net neutrality mess, where nobody in the government can seem to figure out for themselves where the power should be – with the executive (the FCC)? or the Congress? or the lawless courts (as the DC appellate court recently claimed in its own piece of judicial activism)? The result, of course, is that the telecom rackets win. All this squabbling imprints people with the process notion that process is both inscrutable and critically important, thereby fogging their eyes against the fact that either the FCC or Congress can enforce net neutrality at will; who does it doesn’t matter much; the point is for someone to do it.
Those are a few examples of how the existing system, not only on account of the malign intent of the actors, but also on account of its own inertial processes and mindsets, is a pit of stagnation and obstruction where no constructive change can be accomplished. It’s the same existential congealment as that which confronted the rising people of France and Europe in the 18th century.
There’s one big difference between the world Tocqueville described and today. Writing of the days of the ascent of fossil fuels, the ascent of the Industrial Revolution, of mass democracy, of the aspirations of the Enlightenment, he described an ascending new vibrance running into a bottleneck. But today, in the time of Peak Oil, the collapse of exponential debt, the permanent stagnation of capitalism and its calcification into corporatist oligopoly, in our post-democratic, neo-feudal time, we’re more like fugitives who are bottlenecked as we try to escape.
Can we find our own vibrance? Something like the cooperative movement of the 19th century Farmers’ Alliance, and the political self-respect it engendered according to author Lawrence Goodwyn? Relocalization as a movement needs a focusing action which involves cooperative work toward real economic self-reliance and political rediscovery. Such a movement, flowing as water around and under the dead rock of the kleptocracy (in the best Sun-Tzu tradition), is clearly the only possible solution. But we need to find the ideas and actions to render it vibrant. 

August 5, 2009

Where shall we find the Law?

As our political and economic situation becomes ever more precarious, the people will be increasingly faced with the most basic questions of power, constitution, and law. While we may think we understand these things, the course of our history does not seem to bear out the idea that we have correctly understood them.
Where power has been distilled and distorted to its most venal manifestations; where constituted bodies are just the waterboys, flacks, and rubber stamps of corporate greed; where law itself becomes the weapon of special interests against the people; where these prevail it becomes time for the people to re-examine the power relations, and their governmental and legal manifestations.
At the dawn of our supposedly revolutionary era, born of the Enlightenment, resolved to overcome and destroy forever the decrepit feudal system, the new ideas and actions of philosophers and political attempters were supposed to liberate us once and for all.
The core revolutionary idea was that power comes only from the people. Both the American and French Revolutions agreed upon this. But as Hannah Arendt discusses in chapter 4 of On Revolution, there was a divergence of thought on the derivation of law. Both theories had their origin among the French philosophes.  The American founders, following Montesquieu, believed law could be enacted only by the legislative body which the people’s power first constitutes. Thus they naturally sought to establish a republic.
The French, following Rousseau, saw both power and law as expressions of the General Will, which is simply the direct interest and aspiration of the people as a whole. By this concept legislative bodies are at best mediators and facilitators of this Will, and the law they produce is the expression of it. At worst, where such bodies become the playgrounds of special interests, they are tyrannical, usurpers, worthy of being destroyed according to classical political theory.
So how do we judge which theory is the better? By its results. And what have the results of American republicanism been? Have our legislative bodies consistently acted in the public interest? If you believe they have, you can support the American founders’ concept of the legislature as the real repository of legislative authority, of the Law itself.
But if they have not (and I think this is clear), we must find that legislatures cannot be the ultimate source of the People’s Law, that they are more likely to seek to hinder its expression and enact a special interest reactionary feudal law, and that we must return to the Rousseauvian General Will as the real and justified source of the Law as well as power. We must regard the concept of the allegedly different sources of power and law as being a flawed concept, or even as used today a class war fraud.
So that’s one issue, to which I’ll return in a bit. First I’d like to deal with another issue Arendt discusses as having vexed our forebears, the question of the derivation of any absolute concept of law. Once the revolutionaries had dispensed with god they still felt the need for some authority beyond the laws, to be the ultimate source of Law. This unfortunate crypto-theological hangover reached its most absurd expression in Robespierre’s “Cult of the Supreme Being”, which was meant to enshrine reason itself as pseudo-divine. This pathetic attempt at the pious fraud failed miserably and helped lead to Robespierre’s discredit and downfall.
But we have the benefit of two centuries more of political maturation. In particular, we can integrate the thought of Nietzsche and Marx to attain the correct concept of the General Will and its law, where we’ll find the key to the riddle.
Nietzsche discusses the origin of law in Toward the Genealogy of Morals Essay II, section 11. Here he differentiates between the active Law handed down by the affirmative lawgiver who seeks to impose justice and order on the seething, recalcitrant mass of egoisms, and the reactive, hijacked law of those motivated by the most petty manifestations of this egoism: hatred, gutter greed, class resentment. This is a spiritual and political delineation. At the same time Marx has described for us how law arises out of class conflict, and is always the instrument of the ruling class.
So Nietzsche and Marx have released us from the compulsion to look for our law beyond the clouds, residing among the gods. We now know there is no “absolute” law, only action/reaction perspective law (Nietzsche), and that these perspectives are class-dictated (Marx). We need only to reconcile Nietzsche’s contention that the struggle will never end with Marx’s vision of the stable classless society, and we find that while we cannot assume we’ll ever achieve universal goodwill, and we’ll still need “laws” to restrain the petty violences and jealousies of rogue individuals, the Law will no longer have to mediate, and often be weaponized on behalf of, structural class conflict. (This can be achieved if we’re willing to fight for our rights).
[I also take this opportunity to modify Rousseau’s concept of civilization as corrupting the naturally good individual, and stress that it is class war civilization which so corrupts us. Again, not that the end of class war means the end of all strife. But it means the end of large-scale, systemic and systematic conflict and crime.]  
So when we ask, in light of these insights, where do we find the General Will, it’s clear that for most of history selfish parochial Particular Wills, in the form of parasite classes and feudal strata, dictated the law. Now with the advent of the modern economic system the proletariat, the true source of all social wealth, has finally come into full cohesion as a class (though it hasn’t necessarily attained self-consciousness yet). It is now mature and ready to rule itself with its own affirmative law. This is the Law which, politically and socially speaking, will not have a “perspective”, since it will be the Law of the people, by the people, for the people. This, the law of the classless society, the law actively instilled by the people themselves as the rightful owners and enjoyers of all social wealth, will finally be the direct, uncompromised expression of the General Will.
Now we get back to the question of the basis of republic. Has the constituted legislature acted, actively, to facilitate the active law of a unitary people? It has not. It has done the opposite: it has become completely and absolutely corrupt, captured, rotted, rancid, stagnant. It acts purely reactively to defend reactionary paleointerests. It is fighting in a last-ditch effort to prop up calcified feudalism.
There are three reactive obstructions to the people’s active Law. The first is the structural fact of the feudal class struggling to hold on to its monopoly and privileges. Toward this goal it weaponizes the law, in reaction versus the natural progress of the people.
The second is the “human nature” aspect of Particular Will egotism and greed, along with the naturally hateful psychology of right-wing cadres.
Finally, there’s the petty resentment of the lumpenproles. The “cornpone nazis”, as James Howard Kunstler calls them, are economically distressed and have nowhere to go but down. But thanks to political and religious brainwashing they furiously resist any class identification as being part of the proletariat (let alone “the poor”). They cling desperately to their delusional “middle-class” identification (when there is no longer anything more than a steadily sinking zombie middle class), and see this as a cultural rather than an economic category.
Instead they let their exploiters manipulate them into acting as the political shock troops of reaction, desperately joining in with the demonization of any scapegoat they can latch onto: unions, “commies”, the poor (meaning blacks and hispanics), environmentalists, so-called “liberals”, etc.
So these are the reactive forces which have consistently captured our “legislatures”. It is clear that this social model does not express the General Will but only thwarts it.
But do we, in our drive to overcome these obstructions, also embody a reactive impulse? Arendt writes of the rage of the downtrodden which played such a pivotal role in the French Revolution, how it came close to sweeping the Revolution along with itself. This revolutionary rage is reactive against the crimes and insults of the feudal calcification. In that sense it is reaction vs. reaction, but enlisted for the sake of positive action.
So we have a dialectical dynamic of action enlisting reaction toward action. Or, reaction on behalf of the people’s will is reaction toward a higher action. We fight not for revenge, not merely for the negative freedom from oppression, not just to mitigate suffering; but for the active, positive Freedom beyond suffering, transcending all petty oppressions.
We fight a corrupted reactionary system, for action, for progress, for positive freedom.
And what does this mean for the Law? The law as we have known it has abdicated. We now have a Hobbesian free-fire zone, the anarchy of every kind of greed and selfishness reduced to its most gutter level.
The revolution affirmatively seeks to restore the rule of law by instituting the rule of Law, the law serving the people, for the people’s weal.