Guy Fawkes Day Musings

Guy Fawkes Day is a good time to say that people in this country take the rule of law too much for granted.

Police Battle Lawyers in Pakistan: Police armed with tear gas and clubs attacked thousands of protesting lawyers in the city of Lahore today, and rounded up lawyers in other cities as the government of the Pakistani president, Gen. Pervez Musharraf, faced the first signs of concerted resistance to the imposition of emergency rule.

Life is better for everyone when lawyers battle in court.

v-maskWe have many of the good things we have because people have some basic faith in the system — or, even if they don't, most figure that the deal they are getting is not-bad enough (or the expected value of the future deal is good enough), that it's not worth rocking the boat.

The election of 2000 challenged that faith for many. I, for one, have avoided teaching constitutional law in part because I don't know how to teach Bush v. Gore in a way that wouldn't produce a dangerous cynicism in my students.

Cynicism about the rule of law is especially dangerous for beginning law students because it too-easily becomes an excuse to avoid learning the close textual work that good lawyering requires. Told that there's nothing going on but the Realist story, too many will conclude that, if 'it's all politics,' why bother? I do believe that the law retains some substantial autonomy, and thus we have the rule of law — much of the time. If, however, I believed that it was in fact the case that all cases were political, I would accept that I have a duty to tell my students that truth at all relevant times. That isn't what I believe. But it is politics sometimes, and if that happens too often, we pay for it.

Underpinning much of the elite and popular faith in the rule of law is some belief in democracy. Democratic legitimacy underwrites acceptance of the use of force that is sometimes needed to keep the peace. It is why people pay their taxes. That legitimacy is under stress at present (and, not coincidentally, voluntary tax compliance rates are in decline).

Almost two-thirds of the nation wants the US involvement in Iraq's civil war to end soon (or at least within a year) and the number keeps climbing. Yet, the narrative in DC is not about the complex mechanics of getting our soldiers out in one piece and taking the Iraqi people who've helped us out of danger, but instead about invading Iran, a sure sign that something deep is broken somewhere.

Which explains, even if it doesn't necessarily justify, signs of rising civil disobedience.

And that takes me to Crane Brinton's Anatomy of Revolution. My copy is missing, but what I remember most clearly is that among the patterns he distilled from his study of disparate revolutions is first that “revolutions occur during times of rising expectations” and second that a regime tends to fall when its contradictions become intolerable for the intellectuals and functionaries who support it. (If you're not familiar with this very readable classic, here's a link to one denatured online summary.)

We're not exactly in a period of rising expectations — 74% of those polled say the country is 'headed in the wrong direction'. And the clerks are not as yet treasonous, although even some of the most loyal refuse to go to Iraq.

Indeed, if anything, too many intellectuals are still in the tank, in a manner reminiscent of the original La Trahison des Clercs (1927). Recall Julien Benda's argument: he critiques a 19th and early 20th century world in which intellectuals become apologists for the crass nationalism and warmongering of militaristic regimes. That, of course, bears no comparison with current circumstances in which our national commentariate and our leading national media figures speak so dispassionately about political and military matters.

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4 Responses to Guy Fawkes Day Musings

  1. nedu says:




    Excuse me, Micheal, but what part of the realist narrative doesn’t fit here? The part where the rule of law is a joke, maybe?

    I think you’re doing your students a disservice by not teaching them a healthy cynicism. A profoundly cynical attitude helps to preserve one’s sense of humor, and thus helps to preserve one’s sanity.

  2. brat says:

    I teach the politics of ed, and I’m no more cynical than my students, who are working teachers and principals. November/December 2000 is what changed everything, not 911. Try on the realization that educators working in public schools, who do tend to get all misty-eyed about US ideals, are bitter. A hijacked presidential election, botched response to 9/11, the destruction of ESEA via NCLB, Iraq, Iraq, Iraq, and Katrina, and they and we have loads to be cynical about.

    The bitterness is increasingly acidic with each succeeding year. At this point, many of them state we have a government of, by and for Halliburton.

    You really should “suck it up” at teach Con Law. If I’m living with all of the above, with a subject that is very dear to me, you can too.

  3. anonymous says:

    What exactly is your position on Islamic extremism? Otherwise, anything else you have to say exists only in a vacuum and is pretty meaningless from an analytical standpoint. Musharaf is responding to the wake of the Bhutto bombing (unmentioned on your blog?), and most likely fresh intelligence that lead him to believe that a coup attempt by Islamic extremists is/was imminent. Your other postings about torture, surveillance and profiling are pretty meaningless as well, as you have never articulated your assessment of threat level. Unless one assumes you believe that no threat level ever justifies the aforementioned ills (a historically unproven strategy), it is not clear what your assessment of the threat is, and on what sources you rely in making that assessment.

    Although I doubt it was the man himself, you recently told “Shwartzkopf” that your analytical repertoire includes military matters, which one would assume encompasses threats to and from the Middle East. A google search of your blog reveals no stated position on the Israel conflict, and little in reference to Islamic extremism. I am somewhat baffled how a discussion of contemporary civil liberties can be had without a statement of position on the threat (if any) to western freedoms posed by what is perceived to be a spreading doctrine of genocidal fascism. At a bare minimum, since a google search also reveals you to be Krugmanite economist, the profound affects on our economic stability (which I assume you’d agree is closely tied to viable liberal civil liberties) certainly bear mention with regards to oil prices.

  4. fnord says:

    With regards to Crane Brinton and the role of rising expectations, you will note from the provided link that his position is actually:

    3. People are hopeful about the future, but they are being forced to accept less than they had hoped for.

    While I do not recall if it was Brinton who said it, I was lucky enought to take a sociology course many years ago on Resistance and Revolution taught by a visiting professor from the London School of Economics who was considered an expert on terrorism. He’d been everywhere from surviving an IRA pub bombing to witnessing Viet Nam’s tiger cages in action, Gitmo anyone? I clearly remember him citing an (at least credible and perhaps authoritative) source that one of the few markers common to almost all revolutions is that they begin during the first generation which finds itself less well off than its parents. Slouching towards Thermidor. -g

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