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ponderanew · 6 years

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Can Protestant atomization be overcome?

And should it be?

(This is a lightly edited version of an essay I wrote for a law school seminar on capitalism and democracy.)

Introduction

Protestantism, it has to be remembered, is only masked, momentarily, as a religion. What it is underneath, and enduringly, is a way of breaking things.

- Nick Land, The Atomization Trap, Jacobite Magazine

European political philosophy, from Hobbes to Mill, consists essentially of efforts to construct and justify new foundations for society in the destabilized wake of the Protestant Reformation. The Reformation did much more than dictate new church authorities and tweak a few doctrines pertaining to salvation: it swept away many (macro-scale) political entanglements with the institutional Catholic Church and introduced an entirely new (micro-scale) self-conception in relation to truth, first of the religious variety and later all others. The fundamental unit of Protestant society was no longer the fief, the parish, or the guild, but the atomized individual. It is this individual that almost all these European political thinkers begin with when trying to derive the characteristics of the good society from first principles.

An atomized individual is one who conceives of him- or herself as final authority on matters of conscience, ideology, association, or other relevant characteristics by which an individual can be distinguished from the surrounding society. To the extent an atomized individual submits to an outside authority with which he disagrees, he does so only externally and begrudgingly, as the result of an internal calculus that such submission is more tolerable than the consequences from not submitting. His thoughts are not initially taken captive to the obedience of any authority he does not choose, and the authorities from which he derives his own thoughts and ideological commitments are made by his continuing choice of and assent to those authorities, not by their intrinsic authoritativeness. Naturally, his associations are voluntary, with exit of some form or another always remaining an understandable (if not positively sanctioned) option. His rallying cry is Luther’s (probably apocryphal) “Here I stand: I can do no other.”

Armed with his own Bible, telescope, rational mind, or empirical senses in turn, the Reformation man gave way to the Enlightenment man, and on into Modernity, becoming more thoroughly atomized along the way. The Reformation method of changing society, what Tocqueville saw as the common method of Luther, Descartes, and Voltaire, flows from the basic presupposition of the primacy of private judgment. Luther did his part to unlatch society from Mother Church, Descartes from any sort of inherited dogmatism in religion, Voltaire from religion at all; it fell to the social thinkers of post-Reformation Europe to replace Christendom and its corresponding hierarchies with an entirely new foundation.

These thinkers were thus involved in answering a distinctly Protestant-flavored question: how do atomized individuals socially cohere? Their answers were concerned primarily with how societies produce and maintain liberty and equality for their citizens. The preeminent importance of liberty and equality appears obvious given the above definition of atomization: if man is atomized, then liberty (the independence of man from man) and equality (the non-domination of man by man) are fundamental to his nature. Social arrangements that render man in fact unfree or unequal are thus predicted to decohere; human beings will tend to settle into arrangements that more closely mirror the innate qualities that their natures predict.

We see these themes even in Thomas Hobbes, who seemed to value security more than continuing liberty or equality: the act of man in the state of nature to come together and create a sovereign has legitimacy precisely because man is free and equal. In other words, liberty and equality for Hobbes are the preconditions of meaningful political participation, although their ongoing role once a sovereign is established is less pressing for Hobbes. The central roles of liberty and equality become all the more explicit and thoroughgoing in John Locke and the American and French revolutionary political documents, which place the two values front and center in their blueprints for democratic governance. Democracy, as it approaches universal suffrage, increasingly guarantees formal liberty (subject to the general will, the tyranny of the majority, or what have you) and substantive equality. Adam Smith’s notion of the market society is founded on “natural liberty” and its consequent equal treatment of all in economic matters; capitalism is thus a system of substantive liberty and formal equality (with vastly unequal outcomes resulting from everyone’s equal entitlement to transact voluntarily). The promise of capitalist democracy is that it maintains the two societal virtues in a tense balance: when capitalism threatens equality too much, democracy reins it in; when the tyranny of the majority impedes liberty too much, the iron law of the market finds a way around the roadblock. In sum, both democracy and capitalism are aspects of the great answer to the question of how atomized individuals form a society; they presuppose, rather than prove, that man is of necessity atomized.

At this root Karl Marx struck. Ludwig Feuerbach, whose Essence of Christianity was itself a grand exposition of the distinctly Protestant character of atomized man, probably did not believe himself to be saying anything controversial when speaking of a human essence or human nature as a set of characteristics possessed by each individual. For his boringness, he became a punching bag for the animating idea of the most vigorous political movement of the 20th century. Marx’s counter-proposal was the first truly alternative anthropology to find purchase in the European consciousness after the Reformation. But Marx’s effect seems, in retrospect, to have been something more like a surface treatment than a true reorientation of man. The seductiveness of private judgment was not displaced by inculcation in revolutionary practice, and 20th-century left-leaning groups splintered off of each other in a pattern reminiscent of Christian denominations in the American South. Many of today’s states that still call themselves Communist have essentially market-based economic systems. This isn’t to say that history has settled the battle between individualist atomization and Communist collectivism, but to the extent Marx was correct about the reality and power of thought being its real claim to truth, atomization still seems to be winning.

Knowing all this, is de-atomization achievable at all, and if so how could it be done? Marx took a shot at the king, and the perception since 1989 has been that he narrowly missed. Nietzsche, as the intellectual godfather of the other influential 20th century collectivist movement, seems to have missed by a wider mark. It remains to be seen which shots not yet taken might land, but reviewing the history of internecine Protestant disputes—discussions of which troublemaking social facts needed addressing, which aspects of a society contributed to its resilience—can give us an idea of where the weak points might be. If Protestant atomization is the end of the history of anthropology, it is so because to decide, for yourself, knowing what it is, for or against it is to be complicit in it. Anti-atomization, as an ideology propounded by an individual, seeking the voluntary assent of his fellows, performatively presupposes atomization. The least atomized communities today are those that have successfully shut out accurate information about the rest of the world; the most effective way, and perhaps the only way, to escape atomization may be never to atomize in the first place (think North Korea).

Lasting de-atomization may be impossible, and avoiding the phenomenon in the first place has come with substantial costs. So the natural follow-on question is whether and why it might be desirable even to try to overcome atomization. Once again, the answer will draw on the history of internal debates about how to kludge together a social system on a foundation of atomized individuals, as well as Marx’s and Nietzsche’s external critiques of the most favored kludges. Slapping a moral valence on atomization as a general trend is easier said than done; you might as well ask whether “growth” or “dynamism” is good or bad. In all such cases, the answer is clearly that the goodness or badness of the abstract principle depends on the context. All we can do to provide a useful answer, not abstracted to the point of meaninglessness, is describe what we lose, and what we gain, when we unglue society and reconstitute it on an atomistic foundation. Burke provides a fond glimpse at the society we lost, Locke and Smith give us the dual cores of atomized society—democracy and capitalism, and Marx provides an internal critique of the system and a jumping-off point for the next would-be rebuilder of a collective social foundation. I will thus focus on these thinkers in exploring the relationship between atomization and social order.

Slovenian philosopher Slavoj Žižek proposes a method of reading the major works of a canon subversively by situating their claims in light of a “minor text” from a disfavored or counter-hegemonic tradition. I propose to thus “short-circuit” the project of Protestant political philosophy by reading its claims in light of Nick Land’s brief essay “The Atomization Trap.” This reading identifies a rejected and disavowed premise that nevertheless explains the trajectory of the post-Reformation political philosophy canon: the sort of “human nature” that makes democracy and capitalism especially desirable is not the universal essence of humanity, but a distinctly Protestant phenomenon that is still progressively instantiating itself and has not finished eating its way through our organizational principles. This atomization premise implies that liberal capitalist democracy is not, in its current form, the end of history. If human nature were stable, there might be a means of making permanent a system of political legitimization, built upon features like those of democracy and capitalism. But progressive atomization destroys the bare possibility of stable rules for political legitimization. Even if atomization has an endpoint, we aren’t there yet; capitalism and democracy will have to evolve or else be cast off as mere inherited dogmas by the ever-more-atomized man of the future.

I. Burke: Actually, Inherited Dogmas are Good

Edmund Burke stands in a contrast to his contemporaries that becomes much more starkly apparent in light of the atomization premise. Burke’s history-first pragmatism always stuck out from the theory-driven approaches of his contemporaries, but his support for the American Revolution and opposition to the French allows a cursory reader to lump him in with the faction, internal to the Protestant project, that favored Locke’s take on natural rights over Rousseau’s theory of the general will. But a closer reading of Burke reveals him not as a conservative Protestant, but as a crypto-Catholic, in anthropology if not religion.

Burke’s basically Catholic outlook is apparent in his objections to the French Revolution and his theory of political inheritance. Burke’s appeal to sentiment in his description of the end of chivalry in favor of the age of “sophisters, economists, and calculators” is characteristic of his general approach. Chivalry is an exemplary institution of the sort that an organically integrated (i.e. non-atomized) society generates: it establishes particular modes of ritualistic behavior between persons of different rank, especially across gender lines, and by doing so simultaneously entrenches the underlying class and gender stratification of power in the society and (according to Burke) makes the lower-ranked members of that society happier with their lot, since the classification binds the nobles and knights along with them and tempers the force of the exercise of raw power by its normative strictures. Such an institution could sate the inherent human desire for recognition by means of a “pleasing illusion” rather than by tampering with the class ranks on which the social order was built.

The state of flux of the rest of French society, beyond the basic political liberty that the French Revolution achieved, was Burke’s ground for refusing to congratulate the French on their achievement. Burke’s analogy of social order to an entailed inheritance implies that conditions are attached to its transfer to each successive generation, and that these conditions require perpetuating certain norms of the prior generation’s social order. The English fee tail entrenched male primogeniture norms (and particular aristocratic families) by binding real property to their continuance; Burke sees the perpetuation of social order in much the same way, as contingent on the continuation of hierarchical social norms and strictures. His litany of institutions and societal qualities enjoyed by the Kingdom of France and lost or degraded by the Revolution—“laws overturned; tribunals subverted; industry without vigour; commerce expiring; the revenue unpaid, yet the people impoverished; a church pillaged, and a state not relieved,” etc.—serves to illustrate the problem inherent in trying to convey social order without complying with the entailment.

Hobbes’ fear of instability is the nearest analogue within the Protestant canon to Burke’s anti-French Revolution sentiment, but Burke is clear that his objection lies elsewhere: not merely against the political act of rebellion against a monarch, but against the entire worldview animating the revolutionary project in France. Hobbes’ argument against a right of revolution depends on the atomistic individual owing it to himself to obey the sovereign that he or his countrymen chose, since consent to the principle of popular sovereignty and majority rule in the initial act of choosing a sovereign is consent to the sovereign that the process produces. Atomized man could (and for Hobbes, must) thus consent to the given sovereign despite his private objections to certain sovereign prerogatives or policy choices. But Burke could care less about what sort of political order human nature is said to predict.

Burke’s objection to the Revolution is more basic: reconstituting society by theorizing about human nature in the abstract and upsetting every institution not derivable from first principles is an inhuman, disembodied endeavor. Human societies, Burke claims, have historically developed organically by trial and error, not according to an ideological plan. They function as a complex ecosystem, with intermediating institutions such as the nobility and clergy, between the sovereign and the individual. These institutions temper and obscure the workings of power on the populace, making the subjection, inequality, and social immobility endemic in old-model societies more tolerable, as part of a unified whole with its own richness and grandness. (You might be a tenant farmer, slaving away in your lord’s fields to produce your quit-rent wheat, but your fealty is unimpeachable, and besides, the last will be first in the kingdom of heaven.) The revolutionaries’ project—to strip these intermediating institutions of their power, deposit whatever power remains in the assembly, and hope the society continues to hum along as it did before but with some fundamental inequities rectified—is therefore a pipe dream. There are simply too many variables to control for when trying to replace an entire social order with one derived from first principles.

Burke’s different perspective on the American Revolution is therefore more a function of the circumstantial prudence of the Americans than their ideological differences with the French. The American Revolution lacked many of the society-disrupting characteristics Burke would later lament in reflecting on the French Revolution. Burke notes that the Americans, as a distinctly Protestant (and dissenting-Protestant at that) people, had an intrinsic attachment to English-style liberty and self-governance; moreover, before the Revolution they had lived out this internal impulse by forming popular governments, subservient to the crown, within many of the colonies. A change in allegiance from the crown to their own government, set up according to many of the principles already existing in the colonial governments, was therefore much less drastic a shift than the French abolition of the monarchy, the aristocracy, and the entire feudal system of obligations and privileges, as well as the disestablishment of the Church. Moreover, according to Burke, the colonists’ idea of liberty was more consistent with the English tradition, theoretically passed down as part of the “entailed inheritance” of English political order, than were the efforts of England to bring her colonies to heel. Such a revolution is fairly describable as a restoration of old principles, freshly adapted for a liberty-craving populace. Not so the French Revolution: there is no indication that the positive radical liberalism, rather than mere grievances with feudalism, of the assemblies was shared by the common man.

The different growing pains that the French and American republics experienced are traceable to the different suitedness of the government systems for governing the people of each republic, as they existed at the time of the revolutions. As a predominantly dissenting-Protestant group, and as a colonial society, the Americans were much more zealous for and experienced in self-government by the time of the Revolution. The French citizenry was largely Catholic and subject to feudal social arrangements; the elite lawyers who represented them in the Assembly, and whose ideas of human nature reshaped the state, were often not. Recriminations, executions, and a few more iterations of the republic were to follow in France. But America’s chief issue was less inexperience than internal division between the two sorts of freedom-loving Protestants Burke mentions: the southern slaveholders and the northern post-Puritans.

Burke’s perspective on atomization is complicated; he is no raging ideologue for or against it. He proposes that mashing a not-yet-atomized social order together with a new political order that presupposes atomization is a dangerous game. But when the people are already atomized, being the sorts of Protestants that are “most adverse to all implicit submission of mind and opinion,” self-government that presupposes atomized man might work out just fine. So Burke cannot really be read to endorse either the individual or collective conception of human nature; he simply endorses individualist government for individualist man, collectivist government for collectivist man, and gradual transitions of government as the population individualizes. But his rosy depictions of feudal France give a helpful account of the sorts of virtues that a pre-atomization society is uniquely suited to incubate.

The problem with trying to retain a social structure that can incubate the virtues of chivalry and mutual respect between feudal classes is the system’s vulnerability to headstrong atomizers, which the history of the French Revolution illustrates. Burke seems to see the writing on the wall for the remaining pre-atomization societies in Europe as he chides the French for ruining the noble and mutually trusting exercise of sovereign power for all other insufficiently liberal states. Notably lacking in Burke is any indication that France should try to regain the virtues she has lost. Such a project would presumably be impossible, since once the pleasing illusions of feudal power have been stripped away, all there is is the bare exercise of political power motivated by atomistic ideology; reinstalling the illusions cannot fool anyone. The Revolution made the king and nobles into mere men, who died like any other; with them died the mystique of royalty and the comforting feudal structure according only to which power could legitimately be exercised. If government is to be rational, and rationality is to be judged by private judgment, then anything that can be judged to be in the public interest is doable, and nothing is beyond the reach of the State. And this sea change in the relationship of sovereignty to the individual, once accomplished, is irrevocable. A power that has shown itself willing to cast off all its limits once cannot be trusted to stay within them in the future.

II. Locke and Smith: How to Save Liberty and Equality From Each Other

Liberal, rational government has as its basis only the self-sovereign, contracting individual, so the only real limits on power at any time are those that nearly everyone is convinced are important. This makes social cohesion risky, since the rules governing decision-making for the society are subject to change based on popular whim. The project of liberal political theorists is thus to show that each self-sovereign individual properly ought to agree to certain limits on power, based on some first principles that everyone in the society already agrees are valid. For Locke, these principles are religious: the notion of a natural law that governs man in the state of nature, with God as judge when no human judge is available, is crucial for Locke to establish that there are limits to the power of a state over an individual. Mill appeals to utilitarian ethics to fill much the same role in a later, more secular age. Both were doubtless aware that the true cause of governments’ confining their exercises of power to the proper sphere, defined by Locke’s natural-rights theory or Mill’s harm principle, was not the principle itself but the deterrent effect of the popularity of the principle.

Adam Smith’s project is similar in that he is aimed at convincing atomized society to adopt a set of norms that promotes social cohesion, but his norms are economic and deal with statecraft only secondarily. The laws of supply and demand may be essentially laws of nature, but the sort of person who is likely to think in terms of, and carry on economic activity in knowing accord with, the laws is atomized man, not the feudal peasant. (The peasant pays his tithe-wheat, not because he is at least indifferent about having the benefits of satisfying a religious duty rather than a tenth of his wheat, but because that’s what peasants do.) Capitalism produces social cohesion for several reasons. First, it requires minimal restrictions on buying and selling along with a strong property regime, decreasing the chance that the populace will grow weary under oppressive state restrictions on their ability to earn a living while increasing the initial value of the investments that the people feel secure making. Second, its convincing theoretical foundation makes whoever wields sovereign power in a society at any given time less likely to implement restrictions that hamstring its productive power. Third, it flatters the ego of atomized man, telling him he does good for society by seeking his own good, and thus encourages its own continuation among the common people.

Despite their advantages, both liberal, natural-rights-based governance and capitalism are vulnerable in certain ways. Liberalism, more than capitalism, is endangered when the populace stops believing in it, be that because of security exigencies, a new sweeping ideological fad, or simple demographic shift or a reaction thereto. (The recent rise in popularity of illiberal-right nationalist parties in Europe can perhaps be attributed to this sort of dissatisfaction with liberalism.) Modern secular man may consider Locke’s discussion of the source of natural rights mere superstition and either support the political recognition of his own favored set of human rights (data privacy, broadband Internet, etc.) or reject the idea that there are real limits on what a democratic sovereign may do to respond to emerging needs. He may do so at no cost to himself, as long as his opinions are not too esoteric, but may face social sanction if his expressed ideas are repugnant to his fellows. This process is often slow but can be sped by large-scale social crises.

The fact that one can, as we Americans do, write the rights down in a Constitution and laws slows the disintegration process of the liberal consensus but does not arrest it. Laws have to be interpreted by people at the time they are applied, and if the underlying concepts need to be adapted (in the view of the appliers) to new circumstances, they will be. Thus did liberty, a consensus rallying-cry of our Revolution, morph into “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” one of the most divisive declarations of right in today’s climate.

So liberal democracy relies on social sanction to preserve its list of limitations on sovereign power, by which liberty is protected from the tyranny of the majority. Which particular liberties are protected may change, but the facts of democracy and limited government tend to persist. Capitalism’s productive power improves the material conditions of many members of society; those persons have a vested interest in its continuance and often derive extra political power from their economic power if they so choose. But when the sort of economic activity that robust market capitalism tends to promote leads to economic downturns, as happens with some regularity, democracy tends to react by restricting economic activity of various sorts. (Price controls as part of the New Deal, Dodd-Frank after the financial crisis, etc.) Rarely do such restrictions destroy or permanently hamper the power of capital in a society, but they do tend to sate the impulse of democracy to punish capital for its excesses. And capital inevitably increases its power despite the restrictions, by moving over to less regulated sectors of the economy, refusing to comply and paying the occasional fine, or some other workaround.

For its part, capitalism tends to secure liberal democracy against becoming illiberal. The interests of capitalists are aligned with those of the property-owning class throughout history, in favor of social stability rather than popular uprisings. Social stability comes in part from atomized man being content rather than being subjected to oppressive restrictions on liberty. Capital is thus unlikely to deploy its political power in support of internal changes that illiberalize society. (In recent years, capital has actively withdrawn economic benefits from U.S. states that have passed arguably illiberal laws, such as HB 2 in North Carolina.) This is not to say that capitalism tends to liberalize states that are already illiberal (Singapore comes to mind) but that the effect of capitalism is relative stability in whatever sort of political order a state already has.

So both democracy and capitalism are theoretically vulnerable to being abolished within a state by acts of popular sovereignty, but the two tend to reinforce one another. When a democratic society has higher economic liberty, the more-capable tend to outcompete the less-capable to a greater degree than when economic liberty is low (which is not to say that society approaches a pure meritocracy, just that the proportion of wealth attributable to merit increases). Inequality thus increases without any gentle, overarching social myth that justifies it; if you’re poor, the capitalist myth goes, it’s because you didn’t work hard enough, or you made bad choices. Democracy reacts to inequality by instituting redistributive systems: single-payer health care, Social Security, etc., which either restrict economic activity or appropriate the proceeds of it through taxes and fines. When democracy gets too far over its skis in an attempt to restrict or appropriate, capitalism finds a way to exploit the market inefficiencies created: whole cottage industries spring up to reduce the transaction costs created by new regulations, companies restructure compensation packages to exploit loopholes in the tax code, etc. And the relatively free movement of global capital means that no one democratic sovereign can hamstring it too much.

With this relationship between democracy and capitalism in mind, let us examine how successful Locke and Smith respectively are in their projects of building a lasting society on the foundation of atomized man. At first glance, Locke seems like a lost cause; he presupposes far too much in the way of detailed points of theology to be convincing to a modern, secular reader. But many of his conclusions are equally reachable by means of the implicit premises that seem to underlie much of contemporary liberal ideology. Smith’s empirical foundation still has its devotees, but his reliance on theology actually fares worse than Locke’s. Overall, the fact that both democracy and capitalism have survived as long as they have despite the falling out of fashion of many of their proponents’ premises implies that something in the nature of how atomization has proceeded up to this point, rather than external facts like particular theological doctrines, produces democracy and capitalism.

Locke finds the equality of man in his common creation by God, and his rights as set down in the natural law which is written on man’s conscience. We know that God made us free and equal by simply reasoning about our natural state, once antiquated concepts like the divine right of kings are shown by reasoning from the Scriptures to be false. God reinforces this rational judgment that all men by nature are free and equal by writing the natural law on our consciences, such that we feel that oppression is wrong. The natural law allows us to distinguish government from organized crime and valid claims to property from false ones. For Locke, all this is apparent simply from pondering the nature of things, in light of the Scriptures.

The finer points of Locke’s theology are no longer agreed by social consensus among historically majority-Protestant countries, but the basic thrust of his conclusion is still widely accepted. The notion of rights that inhere in each person equally by virtue of our humanity is still common, even if we no longer agree on what basis those rights exist. But this doesn’t get us all the way to a stable political order; we need some criteria for evaluating claims of right and deciding whether an asserted right the government is infringing is a real right such that the government foreswears its legitimacy by infringing it.

This lack of consensus on a method of evaluating claims of right threatens the Lockean project, but not terminally; as long as atomization remains, so do some self-evident rights. Some rights and liberties are inherent in the atomized self-conception; e.g., the right to one’s own opinions (and therefore freedom of religious belief if not necessarily practice) is necessary to exercise private judgment. Human equality is also inherent in the atomized self-conception; all of us have access to reason, so no one can dictate authoritatively what truth is, including ethical truth, for another; therefore no one has any authority over another’s actions not constructively consented to by the other. To the extent that society continues to be full of atomized individuals (and there is reason to suspect that it will), these rights will remain self-evident.

Other rights and liberties follow from the implicit premise of providential history, the sort of post-theistic Protestant worldview that uses phrases like “the wrong side of history” to condemn political stances with which it disagrees. This worldview is not inherent in the atomization process but is a strong corollary to it; the legitimacy of private judgment implies that many modes of being and living in the world, formerly repressed as improper on the basis of certain past superstitions or other theories now believed false, are just as honorable as the historically hegemonic modes. This worldview employs the atomization method to its conclusion—at least to whichever conclusions are fairly cognizable by the society at the time (it took four score and seven years for Americans to realize that “all men are created equal” meant regardless of race, and another 55 to realize “men” should be read there as the neuter noun for all of humanity). Since atomization tends to produce this worldview, it could become fixed in society to enough of a degree to form a sufficient social consensus of the limits of power.

Reading Locke subversively through the lens of atomization thus teaches us that it doesn’t really matter what the ground of rights is, as long as there continues to be sufficient social agreement on what it is. Since the atomized conception of the individual and the truths that it implies are the only continually self-evident truths in an atomized society, those are the liberties that everyone can agree the government exists to protect.

The most important liberty for the project of achieving social cohesion through liberal democratic capitalism is the right to appropriate and own property, and while Locke’s foundation for the property right is solidly provable all the way down to the nature of the atomized individual, he does not succeed in legitimizing any particular arrangement of property titles. Locke’s basic property argument is that every man owns his own labor, and therefore mixing one’s labor with material from the commons converts that commons-material into property, as long as the taken material is not wasted and as much and as good remains in the commons for others. This theory can explain how some property was created, but it provides no support for the current arrangement of property ownership, as there is no way to tell which parcels of land or chattels were taken from the commons in an original legitimate act and which were not. Locke argues that the use of money is a constructive consent for others to take more than they need from the commons, since the waste problem is solved, but the historical legitimacy problem remains: which titles descend from legitimate takings, where as much and as good was left for others, and which do not? Some takings were illegitimate when they occurred if the entire world is now parceled up. Other takings were accomplished by clear violations of the law of nature, as articulated by Locke. Should those be reversed as well?

One solution to the problem of property legitimacy is to deny the problem and hope that the democratic sovereign doesn’t get riled up over any morally questionable genre of property claims (e.g., the claims to much of the land formerly held by Native American tribes, or a resistance to paying reparations for slavery) enough to threaten the stability of a wide swath of property rights. In practice, this has worked out well, but there is no reason intrinsic to Lockean political theory why it must. It follows that, although the entitlement to property in general is provable from the atomization principle, and stable in a society where everyone can trace their property claims back to a legitimate taking from the commons, the particular arrangement of property titles that we have in any of today’s liberal democracies is not.

So the property-holder may have surety in the institution of property in general, but not in any title of his in particular, aside from that which he mixed his labor with in appropriating it from the commons. (Even property validly appropriated by another and transferred may be suspect, since the right to alienate property can be subject to limitations.) But perhaps it is too much to ask that the rightful owner of Blackacre be provable from historical facts and the nature of man, with no other premises involved. Maybe a little title risk is acceptable on the terms of liberal democracy—the risk can likely be mitigated through other means.

Capitalism and its market-society norms provide the residual risk-mitigation. Adam Smith’s vision of market society replaced the settled feudal order with atomized individuals entering into voluntary arrangements. Such arrangements allow people to acquire things they value more by trading away things they value less, so every rational trade increases the wealth of the nation. But every trade for goods presupposes clear title to the traded goods. So a society that wants to unlock the wealth-generative power of capitalism will generally develop clear rules to disperse clouds on title and statutes of limitation beyond which possession can be conclusively presumed to carry title. And since the political power of capital in capitalist states is high, these rules are insulated from change.

So if capitalism is stable, it can fill the property hole in the liberal-democracy puzzle. Unfortunately, capitalism is as vulnerable to a populace that ceases to believe in it as liberalism is. Smith’s account of the stability of capitalism relies on a sort of providential history quite different from that which now predominates in modern liberalism. For all of the economic benefits that the empirical analysis of capitalism suggests are present, Smith’s case for capitalism was as much psychological as based on a rational analysis of the material circumstances. For Smith, the ambition to accumulate, to gain the trappings of the slightly better to-do man in the street, encourages the sort of economic activity that makes everyone better off. His metaphor of the invisible hand, applied to figures such as the rich landlord who produces far more wheat than he can consume, refers to subconscious psychology, or perhaps divine providence, rather than a calculated decision to take advantage of economies of scale—otherwise the hand would not be invisible.

Smith concedes that it is hard to trust that markets will satisfy the needs of the populace as well as planned arrangements do. It does take a leap of faith, as a newly post-feudal ruler, to liberalize the wheat market and then cross your fingers that the farmers collectively produce neither too much wheat, such that they cannot recoup their costs and are ruined, nor too little, such that the poor cannot afford bread. Smith justifies this leap of faith by an appeal to divine providence, which was probably more convincing to his audience in 1776 than it is to many liberals today—few of whom believe that the same divine providence, which ensures the “right side of history” comports with the Good, also ensures that farmers don’t misjudge demand and glut the wheat market.

But all is not lost: we now have centuries of empirics on how well markets function to provide goods at marginally above the cost of production, and what we formerly used to trust in providence to produce, we now trust in our own scientific skills to predict. And the great thing about science is that it too is an implication of atomization: the ability of private judgment to interpret the world requires there to be an interpretable world out there. So capitalist market norms, armed with empirical data on poverty reduction and economic growth, can provide a practical stopgap where liberal theory doesn’t require that we continue to recognize all the property claims we currently do.

In sum, both Smith and Locke argue for their preferred systems of social order on religious grounds that have largely fallen out of fashion. The rousing success of their preferred systems despite the secularization of society suggests that the real ground of their systems is not some religious metaphysic that society no longer swears by, but the presupposition of human nature as atomized. Since the important elements of both liberal democracy and capitalism are reasonable conclusions from the presupposition that human nature is atomized, they are likely to continue until atomization either goes too far for them to continue to generate social cohesion or gives way to a new collectivism. I propose that only the former is reasonably possible—atomization is a one-way ratchet.

III. Marx: Against the Bourgeois Atomizers

If the story Burke tells is a cautionary tale about what happens when you atomize your sociopolitical relations, Marx’s story is a cautionary tale about atomizing your economic relations. But unlike Burke, who contented himself to be an outside critic of a quickly atomizing society not his own, Marx found himself in the unenviable position of trying to re-collectivize his already atomized society. His method of trying (and failing) to do so is instructive for our question of how atomization could perhaps be overcome.

Marx substitutes a Hegelian historical inevitability for Smith’s doctrine of providence and unsurprisingly comes out with the opposite answer as to the structure of the good society. This could be as much a result of the sort of capitalism each thinker was exposed to as anything else. Smith’s vision of capitalism in 1776 was a relatively rosy one, populated by newly post-feudal towns full of artisans and rural farmers newly working for themselves. Marx writes during and after Britain’s industrialization, where the much more efficient use of unskilled labor was in grimy city factories, which were often undercutting the small-time artisans of the towns and drawing them into the cities as well. The trajectory of the health and well-being of workers under capitalism between Smith and Marx was not promising. It is no wonder that Smith came out extolling the invisible hand while Marx emerged predicting that capitalism would collapse under the weight of its own contradictions.

Marx recognized that the atomized view of human nature was a perspectival ideology, emerging from a particular social and material context, not a universal truth. Marx viewed human nature, not as an “abstraction inherent in each single individual,” but as “the ensemble of the social relations.” Therefore, the whole edifice of liberal-democratic capitalism, designed as it was to feed atomized man’s inherent wants and needs, could be supplanted by an alternative system without running into any fundamental, human-nature-level disconnects between the populace and the set of relations that constitute communist society. Marx describes atomized man as “alienated,” in that he conceives of some things that are properly part of himself, most notably his labor power, as separate from himself, and able to be exchanged for commodities. Alienation for Marx is a spiritual loss with attendant social and psychological effects, and when accompanied by the material deprivation which capitalism necessarily inflicts on the worker, it makes the relation at the heart of capitalism—the exchange of labor for wages—fundamentally unsustainable.

Marx’s materialism and otherwise quirky metaphysics (derived from Hegel, who as far as Protestants go was a rather quirky one already) make his vocabulary difficult to translate into familiar concepts from the Protestant political philosophy canon. In addition, the fact that Marx operated under a fundamentally different conception of human nature than the liberals means his concepts do not translate very well. But Marx’s critique of capitalism, that the entitlement of capitalists to the surplus-value of the labor-power they buy ends up destroying social cohesion and makes a revolution inevitable, is essentially an argument that unbridled liberty destroys equality. But does it? Liberty and equality certainly threaten one another, but the balance of power seems to wax and wane rather than trend toward one value destroying the other in liberal, capitalist societies. If Protestant political theory had been getting human nature that wrong for 300 years, one would have expected a little more difference between how liberal capitalism worked in theory and in practice.

A possible answer is that neither Marx nor the liberals got human nature exactly right. Perhaps human nature is malleable with a change in social relations, per Marx, but atomization is a one-way ratchet, and once you’re atomized, your nature is well suited for liberal-democratic capitalism and not much else. The efforts of 20th-century regimes bearing the Communist appellation to create a post-atomized human nature, to create the “New Soviet Man” or other such fantasies, bear this out. What the failures of Soviet policy mean for the theory of communism is an open question, but the evidence on the possibility of de-atomization suggests that it’s hard to do, if not impossible.

* * *

Conclusion

The progress of Protestant political philosophy, from Hobbes to Mill, is best explicable by means of a progressive atomization premise. Man continually runs more and more inherited truth-claims under the lens of private judgment and splinters off into factions that in various measures accept or reject the old way. The only inviolable truth-claims are the ones underlying the process of private judgment itself, and those are inviolable only as long as the atomized man is not willing to abide logical contradictions in his thought.

I use “atomized man” as a stock phrase, but there is no reason atomization has to stop at isolating individual human beings from each other and from their social groupings. Perhaps the fundamental unit of the society of the future will be minds rather than mind-body complexes, and the norms of the inviolability of the body or respect for dead bodies will be dispensed with as so much old-fashioned sentiment, like prohibitions on blasphemy. The separation of a person’s gender identity from what have traditionally been called biological facts about sex may end up prefiguring this development in our atomization process. Perhaps the division will go further, and the fundamental unit will be the will rather than the intellect. That could get us to a place where people stop agreeing with the logical implications of private judgment while continuing to exercise it. The empirically useful categories, like logic, are less likely to become socially controversial than the merely traditional ones, but who knows. Perhaps this is the future that Nietzsche saw, and went mad.

Since both liberty and equality are validly derivable from the process of private judgment, as long as logic holds sway some types of equality-guaranteeing and liberty-guaranteeing social systems should remain valuable for social stability. This will likely involve some form of popular sovereignty and private ownership of the means of production, as these are tried-and-true pillars of relative social stability when combined. This phase may last a long time, or it might be rendered obsolete by developments in technology: superintelligent AI-based governance or hyper-efficient fully automated corporations. One can hope that technology renders our economy functionally post-scarcity before social cohesion stops being possible.

Outside of some exotically futuristic technological solution, or the grace of God, I do not know how atomization can be overcome. Surely through no merely human effort. Elective communities, even explicitly anti-atomization communities, simply reinforce the primacy of private judgment; their initial and continued existence is the result of a private judgment made by their members. The Communists tried revolution and the destruction of the atomizing class, but their revolutionaries had been atomized first. Our best hope may be to say some prayers, but not everyone can do that in good conscience.

I suggest we keep talking to one another. It won’t put off the end indefinitely, but it might help.

#protestant #catholic #political #political philosophy #locke #adam smith #marx #burke

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bellarkelifestyle · 8 years

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not normally political but here goes

I have a lot of thoughts about what’s happening to the Muslim/Arab people in America right now and I just want to say that I understand. Living in a white society, it is so hard being an immigrant, especially if you’re part of a visible minority, and I’m not trying to belittle, devalue, or make light of other minorities that have been oppressed over the years like the LGBTQ+ community, or women in general, but because of what’s going on right now in this context, with this ban, this is about race. They (the Trump administration, Trump supporters, xenophobic/racist people in general) can chalk it up to immigration all they want, but they aren’t fooling anyone. Even though it’s said to be temporary, the fundamentals behind even implementing this as temporary action is highly concerning.

If you look at the events that led to World War II, to the Holocaust, it starts with the idea that certain people were creating problems for the German people, that they were eroding the German identity. The “they” in this situation was mostly Jewish people, along with others deemed undesirable, unfavourable and ill-suited to the German nationalistic identity. It didn’t take long for it to turn into a debate on the definition of who/what is German and who/what is not, and we see a frighteningly similar pattern right here and right now, in the continued and deliberate attack on anything related to Islam or the Middle East as well as comments made pertaining to the Latino community. When people in Europe needed help, when Jewish people needed help, they were turned away because of the semitism and the prejudice of the 1930s and 40s, and countless lives were lost. It was horrific, and the world said “never again, never again will we let this happen”, and slogans started coming up saying “as long as people remember what happened in WWII, it’ll never happen again,” and now I have to ask you what was the point of all of these Holocaust Memorials and genocide teachings when we’ve just managed to land right back here all over again, after 70 years with more genocides? (Fun fact: after the horrific events of WWII, a new term had to be coined to be able to properly describe the mass extinction and eradication of a specific group. A term that would be able to encompass all the horrors and disgusting activities perpetrated. So they came up with ‘genocide’; “geno” from genos, generally pertaining to human, or group (like genome), and “cide”, a suffix used to express more than just death; but also loss (see suicide, homicide, etc). A word that should send shivers down one’s spine with just the realization of what it represents. Mass death; extinction.) But after 70 years, what have we learned? We haven’t learned anything, clearly.

But getting back to the present; life became so inconceivably difficult for people that were visible minorities after 9/11. If your appearance in anyway suggested Middle Eastern descent or origin, you became someone that could be targeted, that could be demonized because of what your culture represented, because of what your religion represented. People who have been categorized as ‘Brown’ know what I’m talking about and the behaviour such a label entails. It means the comments about terrorism and being a terrorist said so offhandedly, it means “go back to where you came from” jokes, it means the glances you would get anytime you’d see or hear something about Al Qaeda or Taliban or Isis, it means getting called aside at airport security for ‘random selection’ time and time again because when you’re the brown person travelling in a group of white people it can look suspicious. It happens a lot in Europe, and I understand their fear, I really do. Horrible things have happened in Europe, but horrible things have also happened elsewhere in the world too, for a longer period of time, and that 'fear’ that they feel is the point of all the attacks. They (the radicals, extremists, terrorists, call them whatever you want, their point is the same) want to create that fear to isolate and weaken. We call it 'terrorism’ because it strikes terror - literally paralyzing, unimaginable, unendurable fear - into the hearts of people of diverse nations. It is meant to divide people, to make people distrust their neighbours because of the way they look or the way they pray or the way they dress. It is meant to create factions amongst people that otherwise have no fight with one another, and to create an environment where people are targeted and demonized and blamed for the actions of others. When we react to violence with violence, fear with fear, terror with terror, we are feeding the beast. We are giving those people that want to create worldwide discord what they want. So let’s not let them do that!

Personally, I’m a 17 year old Canadian-born girl of two Indian immigrants, born in Winnipeg, one of the whitest (demographically), most-racist (anecdotally) cities in Canada, where after three months, we moved to Montréal, spent eight years in one of the most cosmopolitan cities in North America, and then finally moved to Calgary where we are now; and I think it’s fair to say I’ve seen a lot of different aspects of what Canada looks like, of what a fairly healthy and functioning diverse country looks like and the truth is, it’s not always fair and it’s not always equal. It’s not always kind, either, and that’s the harsh truth. The notion that a country that’s as generally accepting as Canada is is without flaws is, well, a flawed ideal. Work still has to be done in Canada, but I think it’s safe to say that more work needs to be done in America. I could talk about my own story and my family’s story and just kind of how we’ve seen the world evolve - but then I remember that “evolve” is not the right word, because we’re not becoming something better, we’re just changing, so instead - how it’s changed in the 15 years since 9/11. But that wouldn’t change anything. That doesn’t help people that are scared right now, that feel isolated and alone right now, and that have had terror struck into their hearts because of what 'their’ president said, because of what 'their’ president has done and how he said he would protect the rights of all people in his country. Well, it’s been a week on the job President Trump, and you’ve already failed.

When 9/11 happened, this Islamophobia started, and no one knew what to call it back then, there wasn’t really a word for it. It was just this concept that the Islamic countries were dangerous, and that their ideas were dangerous, and that you have to watch out for them because there’s something wrong with them, and people never really got over that and it’s still visible in the aftermath and the consequences of wars that western countries had no part of getting involved in; but that’s a conversation for another day. When people started comparing Trump to Hitler, I really hated that trend, because you can’t compare the genocide of 10 million people deemed 'unfavourable’ by a sociopath to the ramblings of a racist, rich, white man. I mean there was really no comparison, and it’s unfair to the Jewish population to say that, but never did I think I’d see the day that Trump’s executive policies would align him closer to Hitler’s iconic (sorry, but true) and infamous ideologies than any other head of state since WWII. The fact that his administration has had the audacity to flat-out lie on national television to the very population it swore to serve on its very first day in power is an ominous sign. And nearly every executive order signed since has just further cemented that Trump is a petulant child who is so stubborn he demands that his views and opinions become the law and basis on which to run the country. Because he seems to have forgotten that the core of democracy is that it is run by the people, for the people. Because he is a hypocrite above all else.

But to go back to what this post was originally about. Race. To the people out there who say race is a human construct: that may be true. But to think that we can live in a post-race world is just naive. Unfortunately, that is not the way our world was built, and so we will have to fix it through the limits and barricades the generations of people before us have set up. That means accepting that race is real, that it won’t just go away, and that there truly is a race problem, not only in America, but in caucasian-centric nations around the world. I mean, the idea of being Middle-Eastern or Arab is so taboo that Christianity insists on depicting Jesus as white. You can argue that it was derived from different times, and that’s it’s just tradition, but if you know it’s wrong now, then why not invoke change? Hello? Jesus was a Jewish man from the Syria-Israel-Palestine-Egypt geographic area. He is 99.99% likely to have been brown, with black hair and a thick beard. To think or demand otherwise is frankly, pure stupidity. But it’s not necessarily those believers’ faults, and I’m not here to stir up religious dissent. It’s simply one of the consequences of a system that demands white-washing everything to be at a purity level acceptable for white people, who have always seen themselves as superior, even if it hasn’t been blatantly obvious. Sorry to white people who do care, I and I’m sure many others appreciate the support, but making a difference starts with realizing that the milennia of white-washing and racial negligence that has occurred to create a “proper” society whose idols fit into a range of “white appropriateness” is a system and a concept that need to be changed. And it means stepping up for Black Lives Matter, for DACA/DAPA, and speaking out against religious intolerance when mosques go up in flames or black churches go through mass shootings. It means giving a damn beyond grumbling at the tv, “this is bullshit.” I’m guilty of this too. But we can help invoke change by speaking, by not staying quiet, by taking the leap and breaking the taboo silence that makes us fear being called an overzealous social justice warrior. Don’t be afraid to speak your mind. I had to work up the courage to type this, let alone post it for the world to see. But I feel lighter now, so I would definitely recommend it. Change begins by showing support and getting the word out, letting people know that someone out there really does care, and is not okay with what’s going on.

I literally can not believe that we (humanity) have been civilized for nearly 10,000 years and are still unable to grapple with the concept that skin colour does not a person make. Does not define worth or ability or reputation. And no, just because I’m brown doesn’t make me biased in this cause. It makes me a victim, it makes me a bystander, it makes me a sympathizer, it makes me a supporter, and most importantly, it makes me human. Because racial discrimination isn’t just un-American. It’s inhumane.

I would be happy to hear any thoughts people wanted to share! I don’t have all the info, nor do I know all the proper tags to spread awareness, but it’s all out there and all over and trending so if shouldn’t be too hard to find! Spread kindness y'all :)

#i condemn the muslim ban #muslim ban #news #politics #screw trump #speak out #no ban no wall #i was missingwaterbottles #bellarkelifestyle

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marymosley · 5 years

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Case Summaries: Fourth Circuit Court of Appeals – February, 2020

This post summarizes published criminal decisions from the Fourth Circuit Court of Appeals in February, 2020. Decisions of interest to state practitioners will be posted on a monthly basis. Previous summaries of Fourth Circuit criminal and related decisions can be found here.

Search warrants for blood and vehicle “black box” were (1) supported by probable cause and (2) were sufficiently particular; any errors fell within Leon good faith

U.S. v. Blakeney, 949 F.3d 851 (Feb. 6, 2020). In this Maryland case, the defendant drove across a median and crashed into oncoming traffic, killing his passenger. The impact of the collision tore the defendant’s car in two, with the front-end and engine completely separated from rest of the car. The defendant was found sitting in the driver’s seat with a blank stare. He resisted emergency medical services as first responders tried to remove him from the car. One emergency medical worker reported to a law enforcement officer that the defendant seemed to be under the influence of alcohol and PCP. Investigators smelled a strong odor of alcohol on the passenger side of the defendant’s car. An investigator called the magistrate to obtain a telephonic search warrant for the defendant’s blood. Hospital testing revealed the defendant had a blood-alcohol content of 0.07. A few weeks later, investigators applied for a warrant to search the “black box” of the defendant’s vehicle—the event data recorder, which recorded the operation and condition of the car at the time of the wreck and immediately before. The data obtained showed that the defendant was travelling at least 79 miles per hour within five seconds before the crash. The speed limit was 45 miles per hour.

The defendant was charged with vehicular homicide while impaired and other offenses. He moved to suppress both search warrants, arguing that they lacked probable cause. He also alleged that the magistrate was misled by statements in the affidavit for the first warrant that the defendant smelled like alcohol and possibly PCP (when in fact an odor of alcohol, only, was detected in the defendant’s car, not on his person). He also faulted the warrants for a lack of particularity, based on an alleged failure of the magistrate to identify a specific offense tied to the evidence being sought. The district court denied the motions. As to the blood warrant, the trial judge found that even if the magistrate was misled, the description of the accident, the “significant driver error” involved, the odor of alcohol, and the defendant’s aggressive behavior on the scene established probable cause. The trial judge further found that it was “plain” from the context of the conversation between the magistrate and officer that the evidence sought pertained to a driving while impaired offense. As to the “black box” warrant, the trial judge similarly found that the warrant was supported by probable cause and sufficiently identified the offense:

. . . [T]he description of the severity of the accident and the significance of the driver error involved took the warrant application ‘out of the realm of just a garden-variety car accident’ and ‘into probable cause to believe that an offense had been committed.’. . [I]t was clear from the warrant that the ‘crime at issue [was] death by car.’ Slip op. at 8.

The defendant was convicted at trial and appealed.

(1) The Fourth Circuit agreed with the district court that the defendant’s “gross driver error,” combined with the odor of alcohol from the car and the defendant’s actions towards first responders on the scene supported probable cause for the blood warrant. Together, these facts showed more than a mere traffic collision.

At bottom, Blakeney’s argument is that ‘[c]ar accidents—whether minor or severe—occur for all kinds of reasons unrelated to alcohol-induced negligence,’ and that the warrant application here failed to ‘rule out’ alternative explanations, such as mechanical failure, for this accident. But this misapprehends the probable cause standard, which requires only the kind of ‘fair probability on which reasonable and prudent people, not legal technicians, would rely, and does not require an affiant to rule out all innocent explanation for suspicious facts before seeking a warrant. Id. at 13 (citations omitted) (emphasis in original).

Relying on the largely same reasoning, the Fourth Circuit also agreed with the trial court that the black box warrant was also supported by probable cause. Alternatively, even if these warrants lacked probable cause, “neither . . . could be said to be so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” and Leon good faith precluded application of the exclusionary rule here. See U.S. v. Leon, 468 U.S. 897 (1984). Id. at 14.

(2) The court also rejected the particularity challenge to the warrants. “[W]hat particularity demands in this context is that the executing officer reasonably can ascertain and identify from the warrant the place to be searched and the items to be seized.” Id. at 15. The warrants here did describe the crimes to a reasonably certain degree—the blood warrant application noted the investigation of “a possible DUI-related” crime, and the black box warrant application noted investigation of “a vehicular homicide.” Further, nothing requires a search warrant to name a specific offense. In the court’s words:

It is true, as Blakeney points out, that where a warrant does not otherwise describe the evidence to be seized, that gap can be filled, at least sometimes, if the warrant instead specifies the relevant offense. . . But where a warrant directly describes with specificity ‘the goods to be seized,’ there is no additional requirement that it also set out a particular criminal offense. Id. at 17-18.

The court concluded in the alternative that even if the warrants lacked particularity, the officers were again entitled to good-faith reliance on them. The convictions were therefore unanimously affirmed. [Author’s Note: North Carolina does not recognize the Leon good-faith exception to the exclusionary rule for violations of the state constitution.]

Reversible error for trial court to order special conditions of supervised release restricting computer access without explanation

U.S. v. Arbaugh, ___ F.3d ___, 2020 WL 826450 (Feb. 20, 2020). The defendant was convicted in the Eastern District of Virginia of engaging in illicit sexual conduct with a minor abroad. On appeal, he challenged the substantive and procedural reasonableness of his 276-month sentence, as well as certain conditions of supervised release relating to use of a computer. The convictions stemmed from time the defendant spent in Haiti as a church missionary. The Fourth Circuit unanimously affirmed the reasonableness of the sentence against various challenges but found that the district court erred in imposing restrictions on the defendant’s computer use during the lifetime term of supervised release.

The computer restrictions authorized probation officers to randomly inspect the defendant’s electronic devices, allowed removal of those devices from his home for “more thorough inspection,” prohibited the defendant from using any data encryption, and required the defendant to purchase and use monitoring software on his devices upon request from his probation officer. The defendant’s crime did not involve the use of computers. The trial judge did not explain the reasons for these conditions at sentencing. Circuit precedent holds that the “failure to explain the reasons for any special condition to which the defendant would be subject upon release for life [is] not harmless error.” Slip op. at 19 (citation omitted). That the defendant would be a registered sex offender upon his release was not enough to justify these conditions on its own. “[W]e are constrained to find that the district court committed reversible procedural error by failing to explain why it imposed the four computer-related special conditions. As such, ‘we cannot determine the reasonableness of the challenged special conditions.’” Id. at 20. The sentence was affirmed except as to these conditions; the conditions of release were vacated and the case remanded for the trial court to decide “whether to impose those conditions, and, if so, to provide an individualized assessment of its reasons for doing so in Arbaugh’s case.” Id.

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legalseat · 5 years

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Schemes of Arrangement in Liquidation: A New Ray of Hope?

[Vinod Kothari is an insolvency practitioner at Vinod Kothari & Co and can be reached at [email protected].

An earlier post on the topic is available here.]

The recent rulings of appellate judicial and quasi-judicial authorities in India permitting the pursuit of schemes of arrangement even after initiation of liquidation proceedings may have sounded surprising to many. However, the history of schemes of compromise and arrangement is indeed replete with examples of such arrangements seeking to bail out an entity that is otherwise doomed to be liquidated. Since India stands out in the world, having enacted section 29A of the Insolvency and Bankruptcy Code, 2016, which disqualifies a promoter from submitting resolution plans or acquiring the assets of the entity in liquidation, the issue causing a lot of debate is – how does the possibility of a scheme of arrangement co-exist with this principle of promoter disqualification? Or, if the promoters, disqualified from either heading a resolution exercise or acquiring assets in liquidation, can find a surrogate route in schemes of arrangement, is there a potential of negating the very objective of insertion of section 29A?

Another major question is: unlike the erstwhile Companies Act, 1956 regime where both schemes of arrangement and winding up were to occur under the same law and before the same forum, schemes of arrangement are now under the Companies Act, and liquidation under the Code. Therefore, if a scheme of arrangement has been suggested, should liquidation proceedings in the meantime stand stayed, as otherwise the very existence of a chance of revival through the scheme route will get nullified if liquidation achieves some milestones? Further, is it alright for the jurisprudence relating to the apparent overlap and, to an extent, conflict between arrangement and liquidation to develop on its own, or should the lawmakers interfere and write the law, instead of waiting for long winding route of litigation to reach a finality? This post seeks to address these issues, and seek answers for the various questions.

Schemes of arrangement for companies in winding up

Not only is it possible for schemes of compromise or arrangement to be presented for companies in liquidation, it may be interesting to note that the entire concept was originally intended, both in UK and India (and other countries drawing inspiration from the UK law), to be a bail-out device for companies otherwise headed for winding up. In fact, as far back as in the Indian Companies Act, 1913, section 153 pertaining to compromise or arrangement defines the word “company”, relevant to this section, as a company “liable to be wound up under this Act”. The definition continued in section 390 (a) of the Companies Act, 1956.

To a lay person, a “company liable to be wound up” meant a company that was either on the brink of bankruptcy, or was already into liquidation (since section 391 explicitly permitted a scheme to be presented by the liquidator, if the company was in winding up). It was only due to judicial interpretation of the expression “company liable to be wound up” that the expression includes every company which may be wound up under the Act following the procedure laid for winding up; healthy companies could also be covered under the chapter pertaining to schemes of compromise or arrangement. The ruling of the Bombay High Court in Khandelwal Udyog and Acme Manufacturing Co Ltd., (1977) 47 Com Cases 503, marked a departure from the principle earlier held by the same court in Seksaria Cotton Mills Ltd. v. A.E. Naik, (1967) 37 Com Cases 656, that the provision was meant only for a company on the brink of bankruptcy.

There have been numerous instances in India, and many in UK, where companies which have been in liquidation for years altogether have been ordered to be revived based on schemes of arrangement. Meghal Homes P. Ltd. v. Shree Niwas Girni K.K. Samiti, (2007) 139 Com Cases 418, is a case where the company was ordered to be wound up in 1984 and the scheme of arrangement was proposed in 1994.

Key differences between schemes of arrangement and resolution under Code

There are several significant differences between schemes of arrangement under corporate laws and resolution procedures under the Code. First, resolution schemes have practically no shareholders’ involvement. The structure of the Code seems to be exclude shareholders’ participation in resolution schemes, on the understanding that commencement of insolvency passes control from shareholders to the creditors. Indian law has gone to the extent of explicitly disabling the promoters (mostly majority shareholders) from proposing any resolution plan [section 29A(c) of the Code], or acquiring any assets of the company under liquidation [proviso to section 35(1)(f) of the Code]. On the contrary, schemes of arrangement under section 230(1) of the Companies Act, 2013 explicitly mandates meetings of creditors (and every class of creditors) and shareholders to be called separately, and an approval of the scheme by a supermajority vote in each of them. It may be noted that the need for approval by both shareholders and creditors depends on whether the arrangement involves the interests of shareholders as well as creditors (note the words in section 230 “as the case may be”). Most revival schemes of a company under liquidation will involve shareholders’ interest as well – hence, approval by both shareholders and creditors will be mandatory in case of a revival scheme.

Second, the supermajority approval requirement under section 230(6) has both a head count requirement as well a super-majority vote by value. The specific majority requirement, which was there in the 1956 Act as well, ensures that the supermajority in value does not completely cram-down the minority. Therefore, creditors of small value and small shareholders also wield the power to hold back the consent of larger creditors and shareholders. (See, however, an article by my colleague arguing that the head-count test was consciously dropped based on recommendations of JJ Irani Committee).

Third, it is important to note that section 230 requires consent of every “class of creditors”. As to what is meant by a class in this context and the difficulties in identifying a class has been discussed elaborately in State Bank of India and others v. Altstom Power Boilers, 116 Comp. Cas 1 (2003). (Palmer’s Company Law also discusses as to what constitutes a class for the purpose of compromises and arrangements. These were discussed in the landmark Supreme Court ruling in Miheer N Mafatlal v Mafatlal Industries Limited (1996)). Generally speaking, secured creditors, preferential creditors and unsecured creditors will form different classes. It may also be argued that one of the ways of recognising classes, in case of a company under bankruptcy, is their position in the waterfall under section 53 of the Code.

Fourth, the creditors’ or members’ meetings under section 230 cannot be reduced to a farce by only recognising the votes of only those members who are able to make it to the meeting – because the law explicitly recognises voting by proxies in such meetings. Additionally, requirements imposed by the Securities and Exchange Board of India (SEBI) in case of listed entities have put several additional safeguards, including mandatory facility of e-voting in such meetings, and a separate recognition of votes of “independent shareholders” (see Annex I Para I(A) point 9 of SEBI Circular dated 10 March 2017).

Can section 230 scheme be a surrogate route for ineligible promoters?

One of the most important questions concerning schemes of arrangement is – do the schemes permit the promoters to do what they are not able to do by virtue of section 29A – submit and approve schemes of revival whereby the promoters will perpetuate their stay in the company? The object of introducing section 29A in the Code, unusual in insolvency laws around the world, is to debar existing promoters of the company in default to perpetuate their stay in the company by submitting resolution plans. The sweep of the section is indeed very wide – it is not only limited to promoters of the company in question, but also any other defaulter company. Section 29A has blocked the submission of resolution plans in several high profile insolvency cases in the country, and it will be illogical to allow the submission of revival plans by promoters or controlling shareholders who cannot submit resolution plans by virtue of section 29A.

On the other hand, it may be argued that section 230 is a provision under the Companies Act, which has no equivalent of section 29A. In any case, the scheme of arrangement has the supermajority vote, not only of the shareholders, but also each of class of creditors. If the company in question is a listed entity, the shareholders’ consent must at least meet simple majority by disregarding the votes of promoter-shareholders. Thus, if the creditors and shareholders, in their separate meetings, have anyways reposed faith in the scheme as proposed, should the company not be allowed to come out of the Code and be revived under the Companies Act? After all, a section 230 compromise is not a resolution plan and in any case if the National Company Law Tribunal (NCLT), who would be sitting for approving such scheme, is able to see that the so-called scheme for a revival is an abuse of the process of law, the NCLT may always turn the scheme down. But there does not seem to be sufficient reason to have a generalised disqualification for promoters or shareholders in proposing the scheme.

At the same time, the NCLT also needs to be careful in ensuring that the scheme does not become a device to hold the process of liquidation in limbo and perpetuate the stalemate. Very often, the interest of promoter-shareholders lies in prolonging the uncertainty – when they see that the ultimate is their exit from the management, they try to prolong the stalemate. This is a real risk that NCLTs presiding over the schemes of arrangement will have to safeguard against.

Mechanics of schemes of arrangement during liquidation

How would a scheme of arrangement work during liquidation? The scheme may be proposed by shareholders, or creditors, or the liquidator himself. Typically, the initiation of an application before the NCLT under section 230 happens by the board of directors approving a scheme and making an application for convening a meeting of shareholders and members. During liquidation, since the directors relinquish their offices, there is no scope for the board submitting a scheme. Presumably, the mechanics may be for a substantial shareholder block proposing the liquidator to put a scheme before the NCLT. Creditors, of course, may propose the same directly to the NCLT. If the liquidator sees prima facie strength in the scheme, the liquidator may put forth the scheme before the NCLT.

The meetings of shareholders and creditors for approving the scheme are called at the instructions of the NCLT. Unless the NCLT dismisses the application in the very first hearing, the issue is – while the meetings of creditors and shareholders are being called, will the process of liquidation be stayed? It seems that it will be logical that the winding up proceedings should be temporarily stayed, until the shareholders’ and creditors’ meetings are called to consider the scheme. The principles for stay of winding up proceedings were contained in section 466 of the Companies Act, 1956 – this provision, and several English and Indian authorities on this regard has been discussed at length in Forbes and Company and another v. Official Liquidator (2013). If the schemes have the approval of the shareholders and creditors, then the NCLT may go by the principles well enunciated in Miheer N Mafatlal and similar rulings and, if eventually the NCLT passes order approving the scheme, the initiation of liquidation will be liable to be reversed.

Conclusion

It appears that when the Code was being written, the overlap of section 230 was not clearly visible, even though section 230 as amended by the Code itself makes a reference to liquidator appointed under the Code. However, now that this possibility has been opened up by jurisprudence, it is appropriate that we have codified law, rather than the uncertainty of a judicial law-making. Revival is always preferable over death, unless the so-called revival is just another ploy to permit a promoter using limited liability to continue to do unfair trading.

– Vinod Kothari

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maxwellyjordan · 6 years

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Empirical SCOTUS: Indirectly inferring Kavanaugh’s position in abortion cases

Many people seems to be wondering how Judge Brett Kavanaugh will vote in abortion cases if confirmed to the Supreme Court, and more specifically if he will vote to overturn Roe v. Wade. Kavanaugh has only written a decision in one case regarding abortion — Garza v. Hargan. In that case, he did not stake out a position on the constitutionality of abortion, as his dissent pertained to whether the government’s involvement would lead to an undue burden on obtaining an abortion. He also did not join Judge Karen Henderson’s opinion, which much more directly critiqued the constitutionality of the detained minor’s receiving an abortion.

Aside from this, the closest we get to Kavanaugh’s position on abortion is a 2017 speech he gave to the American Enterprise Institute in which he discussed Rehnquist’s dissenting opinion in Roe. Although he did not directly articulate his position on abortion, his logic could be construed as positioning him as anti-abortion. The relevant paragraph from the speech reads:

In this context, it’s fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either on Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of free willing judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The Glucksberg case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.

This support of Washington v. Glucksberg, and specifically of its significance as a case that does not give significant credence to unenumerated rights, does not easily accord with a pro-abortion-rights stance. Nonetheless, Kavanaugh did not speak directly to abortion, instead offering a hierarchy of different types of rights and a general reflection that unenumerated rights like a right to privacy should not hold as significant a position in constitutional adjudication as rights that are clearly spelled out in the Constitution.

On balance and with little information pointing in either direction, one would not be wrong to say that based on this evidence, Kavanaugh is more likely than not in the anti-abortion camp. This, however, may not be the only way to gauge Kavanaugh’s position on this issue.

A very interesting 2008 article in the American Economic Review by Ebonya Washington, brought to my attention by @NYCNavid, examines the tendency for congressmen and women to vote more liberally on reproductive-rights issues based on the proportion of daughters they have. In the words of the study’s author, the study “find[s] that conditional on number of children, parenting an additional female child increases a representative’s propensity to vote liberally on women’s issues, particularly reproductive rights.”

The cases

This hypothesis is easily testable at the Supreme Court level because all of the relevant data are available, mainly from the United States Supreme Court Database. A breakdown of the cases coded as focusing on abortion and the majority-opinion authors looks as follows:

Click graph to enlarge.

Since before Roe, the Supreme Court has had a regular slate of abortion cases across the years, although they have recently become sparser. This is likely a result of the court’s decreased willingness to hear the cases, not a lack of petitions to the court.

To get a more precise sense of voting coalitions in these cases, the next figure shows the number of times justices voted in the majority versus in dissent in this set of cases.

Click graph to enlarge.

Across the decades, the more liberal justices have been in dissent more often than their conservative counterparts. Justices Harry Blackmun, John Paul Stevens, Thurgood Marshall and William Brennan lead in dissenting vote count, while Rehnquist voted in the majority in the most of these cases. This analysis becomes a bit more nuanced when we look at the types of opinions these justices authored.

Click graph to enlarge.

In a manner related to the previous figure, Rehnquist wrote the most majority opinions, followed by Blackmun. Blackmun also wrote the most dissents. Stevens, who dissented the second most frequently, also had the most special concurrences, indicating that even when he sided with the majority he often did so based on different reasoning.

Other factors

Clearly the conservative and liberal justices have taken opposing sides in the abortion cases. More than a quarter of these decisions came down to a one-vote difference between the majority and dissent. We can see this difference graphically when we look at the justices’ votes coded as liberal or conservative in these cases in the Supreme Court Database.

Click graph to enlarge.

At the top, Rehnquist and Justice Byron White clearly tended to vote on the conservative side in these cases, while Stevens, Blackmun, Marshall and Brennan were likely to vote in the liberal direction. Justices Anthony Kennedy and Sandra Day O’Connor, both seen as swing justices, also both voted predominantly with the conservatives, although to a lesser degree than some of their more conservative counterparts.

Another possibility is that the justices’ religious beliefs play a role in determining their decisions in abortion cases, as Catholicism in particular opposes most forms of abortion. Although justices have clearly indicated in their confirmation hearings that their religion did not and would not affect their decision-making, this might still be a subconscious influence even if not an overt motivator. Catholic judges in the preceding figures include: Kennedy, Justice Antonin Scalia, Brennan, Justice Clarence Thomas, Chief Justice John Roberts, Justice Samuel Alito and Justice Sonia Sotomayor. Kavanaugh is also Catholic.

Most of the Catholic justices (aside from Sotomayor and Brennan) are conservative, which makes the effects of the two factors difficult to disentangle. Comparing Catholic justices’ votes to those of non-Catholics, we see the interplay between religion and ideological perspective. The top graphs below show the ideological direction of votes from Catholic and non-Catholic justices. The pie chart below looks at the overall fraction of liberal and conservative votes across all justices in these cases.

Click graph to enlarge.

There are several important pieces of information here. The justices as a whole were more likely to vote conservatively in these cases than liberally. This was true for Catholic and non-Catholic justices. Catholic justices who were and are more frequently conservative in their own preferences tilted more toward conservative votes in abortion cases than the liberals. The 53 percent conservative vote from non-Catholic justices is, however, much closer to the near-57 percent for all justices than is the 67 percent conservative vote for the Catholic justices.

Relationship to daughters

The study of congressmembers’ positions on abortion looked at the proportion of daughters as the main factor related to more liberal views on abortion. This post also looks at the justices’ absolute count of daughters as plausibly related to more liberal views on abortion. First a look at the breakdown of the justices’ children by gender.

Click graph to enlarge.

All but six of the justices listed above have at least one daughter. Six had multiple daughters, and Scalia had the most with four. Fifteen of the justices had at least one son and one daughter.

This fraction of daughters was then calculated for these 15 justices. Next, I generated two regression equations looking at the relationship between counts of daughters or proportion of daughters and liberal votes in abortion cases while controlling for the justices’ ideologies, whether the justices were Catholic, whether the case was decided by one vote or not, whether a given justice was a woman, and whether they voted for the petitioner or not (a common control variable in such studies because the justices tend to vote for the petitioning party well over 60 percent of the time). [Note: One need not be able to interpret regression results to understand the gist of the results.]

The results of these equations allowed for the generation of graphs that look at the probabilities that the justices would vote liberally in abortion cases based on their number of daughters as well as on their proportion of daughters. First, a graph based on the number of daughters ranging from zero to five. The reference line marks 50 percent likelihood of a liberal vote and the outside lines mark 95 percent confidence intervals.

Click graph to enlarge.

The line here is upward-sloped, indicating that having more daughters is related to more liberal votes on abortion. As the pie graph above shows, the justices voted conservatively on balance more frequently than liberally. As the number of daughters increases to four and five, however, the justices became more likely to vote liberally in such cases. Kavanaugh, with two daughters, falls below the 50 percent probability marker in this graph, although only slightly.

A similar result is shown for proportion of daughters.

Click graph to enlarge.

As the justices move from zero to 100 percent daughters in proportion to sons, they become increasingly likely to vote liberally in these cases. Although the probability moves in the upward (more liberal) direction, even justices with only daughters are just slightly more likely than not to vote liberally in abortion cases. This result is intriguing because it highlights the justices’ conservative baseline in these cases. Because Kavanaugh has only two daughters, his predicted probability of voting liberally in abortion cases based on this graph is over 50 percent.

For those interested in more on the regressions, robust standard errors were used in both equations and both Daughters variables were significant at p-levels less than .05.

Concluding thoughts

The results above are obviously not deterministic. They show a correlation between numbers of daughters or proportion of daughters and the likelihood that a justice votes liberally in abortion cases. Other factors, especially a justice’s ideological predisposition, also play roles in this calculus.

On the other hand, these results show that even after controlling for several possibly consequential factors in the justices’ decision making, the number of or proportion of daughters relates to the justices’ decisions in these cases. Because Kavanaugh has two daughters and no sons, we might infer a greater likelihood that he would vote liberally in these cases than other justices with fewer daughters or lower proportions of daughters.

This does not mean Kavanaugh will not vote to overrule Roe. It also doesn’t mean he will vote to overturn it if given the chance. It does suggest a somewhat blunting effect of daughters and that this might play a role in Kavanaugh’s decisions in the reproductive-rights area.

This is also a first cut at examining this relationship. A more thorough study might look beyond the small sample size of the Supreme Court to gain more statistical leverage out of a larger sample. The downside to such a study, though, at least in relation to the topic of this post, is that it would be divorced from the Supreme Court, which is a unique institution in our federal system and is at the center of the question at hand.

Even though this post does not provide a conclusive answer for how Kavanaugh will vote in these cases, it should at very least provide some additional food for thought on factors that might influence Kavanaugh and the other justices when making decisions in this area.

This post was originally published at Empirical SCOTUS.

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pricelessmomentblog · 6 years

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The Art of Unlearning

“It ain’t what you know that gets you into trouble. It’s what you know for sure that just ain’t so.” – Mark Twain

Most people think about learning as adding knowledge and skills. When you learn French, you learn that the word, avoir means “to have.” You now have a new fact in your mind that didn’t exist before.

Adding knowledge like this, I’d like to argue, is actually the less important case. The most useful learning isn’t usually a strict addition of new knowledge, but first unlearning something false or unhelpful.

To see why unlearning might matter more than strictly additive learning, consider that, for any area of your life in which you operate regularly, you must acquire facts and knowledge about that area. You need to understand your work, where you live, the language you speak, culture you exist in, etc..

This means that, for the parts of your life that matter for you right now or in the past, you already have quite a bit of knowledge. For new knowledge to come in, and not replace or alter anything you know already, that knowledge either needs to be about a detail in your current life that was too insignificant to merit observation earlier, or it has to be about a domain with which you still have relatively little experience.

That additive learning must pertain to either unfamiliar domains or relatively unimportant aspects of domains you are familiar with may seem a strange fact. Most of what we learn in school is of this type of additive learning. Yet, by this very assertion, much of it must not be very important for our day-to-day lives.

When you first need to unlearn or modify what you currently know, that knowledge must involve something you had already learned. This doesn’t guarantee that it is important, however, since most of our knowledge is acquired for living practically in the world, there’s a higher chance something that must be first unlearned is more important.

Types of Unlearning

There’s different ways you might unlearn something in light of new information. The first is a straightforward refutation of the old idea. If you thought that Abraham Lincoln was the first American president and then read in a book it was actually George Washington, you might, if you believed the book, completely revise your view.

This complete refutation is atypical. More likely the new knowledge doesn’t contradict the old one, but it may modify it in some way. If I believe my best friend is very trustworthy, but I learn he is cheating on his wife, I may not completely revise my opinion of him, but I may trust him a bit less or trust him less in marital matters.

Other times new knowledge revises a simpler picture by filling it with more complex details. This is similar to adding new knowledge, although because the older, simpler view of the issue has been overwritten with more detail, there is some unlearning going on. When Albert Einstein discovered special relativity, this overthrew Isaac Newton’s laws of motion. However, this wasn’t a complete refutation, but a modification—Newton’s laws still hold approximately in areas where near light-speed or extreme gravitation aren’t issues.

In all of these cases, however, you have to first let go of something you thought you understood to make way for a new understanding. This isn’t always easy to do.

Difficulties Unlearning

The first challenge of unlearning is that when something contradicts your current understanding, you are likely to dismiss it. This may be adaptive in a world where many of the things people say or information you encounter are false, or lies constructed to manipulate you. Things that you don’t currently believe are, ceteris paribus, more likely to be false. However, this confirmation bias can make it harder to unlearn when that’s valuable to you.

A deeper problem, I believe, is that human beings tend not to deeply represent doubt and uncertainties in a fine-grained way. That is, the things you believe now, you tend to believe completely, even if provisionally. However, whether those beliefs are near-certain or highly-doubtful, the way they are represented in the brain is much the same.

It’s true that a more doubtful belief is more likely to be dismissed than a certain one. If I try to argue that the moon is made of cheese, for instance, I’ll be met with a lot more resistance than if I try to argue something you only believed loosely. However, this revision occurs in an active sense—when one is directly assessing reasons for the belief in question. I believe that, when a belief isn’t being actively considered, it can still inform your thinking in other ways and, that, in those cases the relative certainty of the belief isn’t used.

If this view is true, then that means that many of the things we learned aren’t dangerous because they are immune to counterargument, but because they can subtly influence our thinking in adjacent areas when we aren’t being vigilant to how likely they are to be true.

If this sounds confusing, consider the example I mentioned earlier: a best friend who you discovered was cheating on his spouse. However, suppose you didn’t learn it firsthand, but through a rumor by a third-party. You don’t dismiss the charge outright, but you tentatively accept that there’s some probability that your friend is being unfaithful. If forced to confront this belief directly, through debate or reasoning, you might come to the conclusion that there’s only a minor chance that he is cheating. But, consider instead, if someone asked you, in an unrelated context, of whether your friend ever lies to get what he wants in business. Now, it’s my opinion that this latent, provisional belief that “X cheats on his spouse” may implicitly inform your intuitions about his trustworthiness, even though that belief itself may not be very reliable.

The intuition I want to present is that beliefs, in our capacity to inform us, tend to be a lot more black-and-white as either believed or completely dismissed, rather than, a more accurate picture where many beliefs tend to have middling likelihood of being true. While we can have more nuanced views when the belief is being debated directly, the dangerous case is when they are being used to infer about other topics, yet their doubtful status is simply being ignored to make that inference.

The main challenge of unlearning, therefore, is that most of our false or doubtful assumptions about the areas that impact our lives are never examined. We use these assumptions to operate, but because they aren’t actively reflected upon, studied or challenged, they maintain their full force, even if fairly simple arguments could overturn them.

Learning as Stamp Collecting Versus Diving into Strangeness

I see two main views of learning. The first is like stamp collecting. The person wants to collect more and more knowledge, mostly for the purposes of showing it off to people they want to impress. The knowledge here is largely inert and unimportant for their lives—it’s just a collecting hobby accruing more facts and ideas.

There’s nothing wrong with stamp collecting. Knowing facts and ideas, even if they aren’t particularly useful or central to our lives, isn’t a bad thing. It’s probably a superior hobby to many other pursuits, since knowledge can, at least some of the time, spillover to more practical consequences.

The other view of learning, however, is centered around unlearning. This is the view that what we think we know about the world is a veneer of sense-making atop a much deeper strangeness. The things we think we know, we often don’t. The ideas, philosophies and truths that guide our lives may be convenient approximations, but often the more accurate picture is a lot stranger and more interesting.

Stamp collecting is more popular than diving into strangeness. For one, it is strictly additive. Every new trivia fact, book of the month and water cooler topic gets added to your collection, which you can whip out in conversations and impress people who want to talk about them.

Diving into strangeness, in contrast, involves a cyclical process of first undermining the things you thought you had learned. Facts, ideas and theories, are no longer a comforting collection, but a temporary foothold as you leave them to try to get to something deeper.

What is Strange?

Almost everything is much, much weirder than it looks at first. Science is the clearest example of this. Subatomic particles aren’t billiard balls, but strange, complex-valued wavefunctions. Bodies aren’t vital fluids and animating impulses, but trillions of cells, each more complex than any machine humans have invented. Minds aren’t unified loci of consciousness, but the process of countless synapses firing in incredible patterns.

Science confirms the underlying weirdness, but for most people, knowing science is another kind of stamp collecting. Knowing quantum strangeness doesn’t overlap with most areas of practical life, so it can be an additional fact or idea one knows and can bring out in conversations.

More interesting, for me at least, are all the skills and knowledge that we depend on and use everyday that have hidden weirdness beneath them. When you remember something, did it actually happen that way? When you give a reason for your behavior, did reasoning have anything to do with it? When you think that achieving something will make you happy, will it?

Just as science has incredible depths of strangeness underneath, everyday life also floats calmly upon a deeper weirdness that first requires unlearning in order to appreciate.

Unlearning and Local Maxima

Unlearning is unpleasant for most people. Finding out something you thought you knew was false, or a misleading simplification, feels bad. Since strangeness tends to predominate, and we manage to get by in our lives without worrying about it most of the time, why bother? Why not just collect stamps and leave the bedrock of our intuitions comfortably untouched?

For most people, this aversion to unlearning may not be so bad. Skillful action exceeds skillful knowledge, so, for most people we manage to get by okay even if our articulated theories of the world are out of sync with a deeper reality.

The main advantage, I see, of trying to get a deeper picture is that it helps climb out of local maxima. Theories can, to the extent they are accurate, shine a light on potential things we could do, change or experience that are outside what we’ve experienced directly before. Theories help us make predictions about whether those unseen places are good places to be or not.

A powerful algorithm for machine learning is gradient descent. It has a complex mathematical formulation involving vector calculus and partial derivatives, but the intuitive picture of what it is doing is quite simple to understand. Imagine yourself standing at the edge of a valley. Your goal is to get to the lowest possible spot you can. However, the terrain is quite complex, and you aren’t sure exactly what it looks like. What should you do?

The gradient descent algorithm is simple: go downhill. If you always walk in the direction of steepest decline, you’ll eventually reach a spot where every direction goes uphill again. This must be a low spot in the terrain.

The problem with gradient descent is that you can get stuck in little pockets where, to go further downhill, you must go uphill for awhile at first.

This is a computer analogy, but I believe that human learning methods for acquiring many practical skills through experience work in a similar way. We are pushed and pulled by our intuitions to reach a local maxima of “goodness” in how our lives could be. Although we aren’t always at this equilibrium, if our lives are relatively stable, we tend to return to it.

The problem with our lives is the same as with computers, however. Many people get “stuck” in local maxima. The person who is addicted to alcohol is in a local maxima. Drinking less causes pain, to make things better, they first have to feel worse.

Procrastination is a local maxima. Starting work first involves pushing through an unpleasant feeling about the task at hand. However, as anyone who procrastinates often knows, the state of procrastination isn’t particularly good, in an absolute sense. It feels awful, it’s just that any immediate action you anticipate makes you feel a little worse than that, so you stay stuck.

What’s the connection between unlearning and local maxima? Well one way you can get out of local maxima is if you have some notion of what the terrain is shaped like. If you know, for a fact, that you are sitting in a locally optimal, but globally awful, position, you can push against your intuitions and accept transitional badness in hopes of longer-term goodness.

Knowing what the terrain is shaped like, however, depends on having an accurate picture of the very facts and knowledge that are closest and most fundamental to your life right now. If those facts are wrong, your ability to make guesses about what places further from your immediate vicinity are actually like diminishes rapidly. Depending on how large the local maxima is that surrounds you, it may not be possible to see a better future when one does exist, or there may appear to be one which is actually a mirage.

In many ways, unlearning has the same properties of the local maxima problem for your overall life situation. To get a more accurate picture, you have to first sacrifice some certainty in the things you take for granted. This sacrifice involves going against your natural local-optimization inclinations.

Strangeness, Randomness and Unlearning

So far, I’ve spoken about one method for overcoming the local maxima problem: having a better theory of what unvisited places in the vast space of possible life experiences might be like. This helps spot genuine opportunities for improvement and avoids mirages of hope-inspiring, but ultimately illusory directions to follow.

Unlearning fits into this because, unlikely with the stamp collecting of purely additive learning, we all have pre-existing theories of what the terrain of nearby life spaces is already like.

Another method, however, for getting out of local maxima is simply randomness. Programmers often use some amount of random motion in their gradient descent algorithms. This randomness means that their solutions don’t snag on relatively insignificant dips.

Human beings can use randomness too to avoid the same problem. Exposing yourself to a larger variety of experiences can pull you out of temporary snags. The main disadvantage of this approach is that randomness can sometimes be destructive. Trying heroin, cheating on your spouse or joining a cult may all offer unique experiences, but their dangers may not be worth the payoff.

Unlearning, to me, proposes a relatively safer way of exploring larger swaths of the terrain of life possibilities. It may create a mental discomfort and instability, as you contend with the fact that many of the things you took for granted before may not be true. However, this is often a lot less dangerous than undirected randomness may have on your life.

How to Unlearn Things

How do you go about unlearning the things you think you know? This isn’t a trivial task. Simply throwing your hands up and admitting you know nothing may be a Zen kind of solution, but it doesn’t really offer a way forward to true knowledge. It simply admits ignorance of any theory for explaining the terrain, rather than trying to come up with more useful ones.

One way to begin unlearning is to seek additive knowledge in familiar areas and then use that new knowledge to start pulling up and modifying old knowledge. For me, learning about psychology and cognitive science often had this effect: I would start with a particular belief that seemed reasonable about myself, and then digging deeper, I would encounter careful arguments that showed why those beliefs were probably false. From that point of tension, I could start reworking some of my old beliefs.

This approach can work, but it’s difficult and it requires a lot more patience for theory and academic learning than most people have an appetite for. Another approach is to seek other people’s experiences of the world. Other people may not give you *the* theory for understanding the world, but the more diverse their experiences are from yours, the more likely they are situated in a different position in the space of life possibilities and how their lives differ from your expectations can itself give you information about your own thinking.

Travel, in this way, can be a potent form of unlearning. For me, the best travel experiences of my life haven’t been going to a place that exceeded my expectations, but going to ones which deeply undermined them. I’ve written about how going to China forced me to radically rethink that place. But talking to people in different places has also shown me how arbitrary many of my own culturally-specific views are of things.

This kind of travel means actually talking to people. Learning languages helps because you’re more likely to encounter people who differ from you more dramatically. The normal process of sightseeing and taking Instagram-worthy photos of famous landmarks is fine, but it’s stamp collecting, not acquiring model-altering insights.

A third approach to unlearning is to be more varied and bold in your experiments in life. Pure randomness can have a destructive quality to it. However, if you avoid obvious risks, many directions in life can be explored more thoroughly than most people do.

I think the main drawback of this third approach is that it depends on a kind of self-confidence that itself tends to depend on having had positive experiences venturing outside your safe, little local maxima in the past. Without confidence, people have an instinctive aversion to explore, and so this approach to getting out of life’s local maxima has a feedback component to it. The more successful your unlearning and exploration of life’s possibility space, the more likely you’ll take larger leaps on theory rather than direct experience alone.

Being Comfortable with Mystery

A good meta-belief to this whole unlearning endeavor is to be comfortable with the idea that everything you know is provisional, and that underneath what you know is likely a more complex and stranger picture.

Human beings seem to be naturally afraid of this groundless view of things. I’m not quite sure why that is. It may be that this kind of epistemic flexibility might start to question societal norms and rules of conduct, and so people who think too much about things may have an amoral character. That’s certainly the perspective of many traditional religious viewpoints on things, which discourages open-ended inquiry in favor of professing allegiance to dogma.

However, there’s probably a more basic level aversion to groundlessness rooted in a feeling that uncertainty is bad and that certainty is good. Like most aversions, however, I think this is something you can condition yourself to be comfortable with via exposure.

I used to be very afraid of heights. When I was a child, I had a hard time even going near the window if I was in a tall building. Sometime around my late teens, however, I started pushing myself to be exposed to more heights. First roller coasters, then ziplining and paragliding. Last year, I went skydiving for the first time and, although it was scary, I felt a lot less anxious than I used to feel with much less extreme exposures to heights.

Psychologists have known for some time that progressive exposure can remove many conditioned fears and aversions to things. Sometimes, if the exposure gets paired with a reward, something initially aversive can eventually become desirable as spicy-food eaters and adrenaline junkies can attest to.

Similarly, I think exposure to the unknown, to unlearning comfortable old beliefs about things, to the deeper mystery of things for which our current knowledge is only a temporary foothold, can be something that can switch from we shy away from to something you enjoy. The thrills of finding a new, more accurate, way of looking at things, start to eclipse the aversion to uprooting a previously stable way of thinking.

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