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Thursday, July 4, 2013

The Checks and Balances of Federalism: Hungary vs. the European Parliament

One of the benefits of federalism is the checks and balances between the two systems of government existing in a federal system—that of the states and that of the federal government. That is to say, federalism can be thought of as a governmental system that contains two systems of government—that of the states and that of the federation. Either of these systems can go too far, and the other system should have the wherewithal to pull the other back without compromising its viability. This is why the consolidation of power in one system (e.g., the U.S. Federal Government) compromises the viability of a federal system at least with respect to its checks and balances. One other point: the two systems in a federal system are on the same level; that is, one is not “above” the other. Hence, the supremacy clauses in the E.U. and U.S. refer only to competencies or domains assigned to the federal government.

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

Wednesday, July 3, 2013

China: Mandating the Virtue of Filial Piety by Law

The founders of the United States, most notably Thomas Jefferson, John Adams, and Ben Franklin, held that for a republic to long endure, its citizenry must be virtuous and of a minimum education. Public education would be established, such that the common man could render a reasoned judgment at the ballot box. The dictum that the popular sovereign (i.e., the electorate) should be broadly educated resulted in law and medical schools in the U.S. requiring entering students to have a bachelor degree in another school before beginning the bachelor’s degree in the professional school. In short, public policy is an effective means of providing a people with the opportunity to gain an education, which at least in theory enhances the wisdom of a self-governing people. 

Virtue is another story. Law seems ill-equipped to form a virtuous people. It is one thing to outlaw vice in its outward conduct; how can legislation instill virtue within a soul?  Mandating virtuous conduct, such as in Massachusetts’ “Good Samaritan” law, may be possible where the conduct is in public and thus readily enforceable. Virtue within the home is far more difficult for the law to reach and thus foster. Even vice behind closed doors, such as incest as well as physical and emotional abuse more generally, is difficult for police to catch. To an extent, property rights enable such vice and allow people the option of not being virtuous in a family context.  Yet in countries in which an authoritarian state trumps even property rights, such as China, the question becomes whether legislation is the sort of thing that can foster or mandate virtuous conduct and even a virtuous character.[i] 

On July 1, 2013, the Government of China passed the Protection of the Rights and Interests of Elderly People law, which lists the required duties of adult children toward their parents. The duties stipulated include visiting one’s parents “often” and occasionally sending them greetings. The intent of the legislation is enforce filial piety, or Xiào 孝, by requiring adult children to meet the “spiritual needs of the elderly.”[ii] Man, it would seem, does not live on bread alone.[iii] This apparently includes the elderly.  

Although the government can enforce without much trouble the law’s stipulation that companies must give sufficient time off for employees to visit their parents on a regular basis, how are “greetings” to be enforced? The law itself contains no penalties. Moreover, is kinship, or what Cicero calls amicitia—friendship that is closest in the home—the sort of thing, being a sentiment, that can even in theory be nudged by a law? Not according to Guo Cheng, a novelist, who writes, “Kinship is part of human nature; it is ridiculous to make it into a law. It is like requiring couples who have gotten married to have a harmonious sex life.”[iv]  Forcing gays not to have sex, mandating or outlawing birth-control, and prohibiting a person of one race to fall in love with someone of another can be added under the heading, “Difficult to Enforce” (or, “Should We Even Be Doing This?”). How do the police or a judge assess whether a son or daughter has given sufficient “mental support” to a parent?  

Should a daughter who has been sexually molested as a girl by her father give him spiritual or mental support? Even worse, should such care be obligatory as enforced by the state?  Is filial piety unconditional? An innocent girl having been sexually molested repeatedly by her father might stand in a shower for hours at night while her parents are out. She might have the mistaken sense that she is the person who must be dirty and thus in need of a cleansing. In actual fact, it is her father who is soiled by sickness from within. Further, the daughter might have the mistaken impression that she is afraid when her dad is away rather than at home. Should the state require her to do certain things for her dad when she is an adult (assuming she survives well into adulthood without self-destructing)?  

What about a grown man who as a boy had been beaten and emotionally abused by his dad? What does that son owe his father in terms of care and contact? Should the state dare even step foot into that tortured decision? What if the boy's misandrist mother had tried, albeit unconsciously, over the years to get her son to feel so bad about himself that he might commit suicide to answer for some imagined slight against her?

Any competent psychologist would advise all of those adult children to avoid their respective pathological parents rather than continue to suffer from abuse while offering care and support. Should a law mandate that the victims undergo further injury from parents who clutch out of fear and pride to their old ways or simply don't know any better?

                                                                          Filial piety, one of the fundamental Confucian virtues
                                                                          Image Source: WUJIFA

What exactly is the virtue of filial piety? For six centuries in China, The 24 Paragons of Filial Piety, by Guo Jujing, has taught the importance of respecting and caring for one’s parents. Here the interior is married to exterior conduct. In 2012, the Chinese Government came out with a new edition, brought up to date with suggestions like: teach your parents how to use the internet.[v] It seems rather dogmatic, or arbitrary, to provide such specificity to the virtue. How uncomfortable would it be for the woman who had been repeatedly molested by her unjust father to sit down next to him decades latter to teach him key-strokes at such close range?  The obligatory weight of a six-hundred year-old text might push her over an emotional cliff.  

Generally speaking, law is like a thunderstorm’s wind. It does not discriminate between one light object and another in blowing through. A law is not directed to an individual; nor is law capable of discerning between individual cases. Even in common law, the law coming out of a case is meant to apply beyond the particular plaintiff and defendant. Roe v. Wade, for example, applies to any woman in the U.S. who wants to have an abortion.  

In contrast, virtue interacts with the idiosyncratic nature of the human psyche to form a unique moral character, which the person then applied to particular social situations. Filial piety in practice might mean one thing to you and something else to me even if we agree on the internal essence of the virtue. Furthermore, how we choose to express the virtue externally involves our own particular histories and situations. You might be obligated morally to visit your parents, while I face a psychological and moral obligation to avoid mine. Law is not such a sufficiently fine-tuned instrument to accommodate both of us, even as we share the same virtue.

Given the nature of human nature, law is both necessary and limited in its capacity. Even in the case of an autocratic state such as in China, the law can only do so much in touching a citizen’s interior life—the life of the soul.  Instead of having issued particular requirements to foster the virtue of filial piety in society, the Chinese government could alternatively have put resources into helping the Chinese adults having living parents assess how to apply the virtue to their particular situations rather than determine one size to fit all.

[i] An alternative means, which I do not discuss here, involves the future possibility of scientists being able to “tweak” the human genome to make human beings less inclined to vice and more virtuous. For example, if greed is an instinct or urge to “get still more,” perhaps through genetics that instinct can be expunged from human nature. In terms of virtue, genetics might make it more pleasurable in being generous. Where such genetic treatments are available to everyone, it seems to me that a good ethical argument could be made on their behalf.
[ii] Edward Wong, “A Chinese Virtue Is Now the Law,” The New York Times, July 2, 2013.
[iii] Bible, Deut. 8:3. See also Matt. 4:4.
[iv] Edward Wong, “A Chinese Virtue Is Now the Law,” The New York Times, July 2, 2013.
[v] Andrew Jacobs and Adam Century, “As China Ages, Beijing Turns to Morality Tales to Spur Filial Devotion,” The New York Times, September 5, 2012.

Tuesday, July 2, 2013

The NSA Goes to Congress: Kant on Lying as Unethical

James Clapper, Director of U.S. National Intelligence, told the U.S. Senate Intelligence Committee in March 2013 that the National Security Agency was not gathering any type of data at all on millions, and even hundreds of millions, of Americans. After leaked documents showed that Clapper had misled the committee in stating, “There are cases where they could inadvertently perhaps collect, but not wittingly,” he issued an apology to the committee for having made the comment that was “clearly erroneous.”[1] U.S. Senator Diane Feinstein, chair of the committee, praised Clapper as an honest and direct man.[2] The discerning reader realizes the full implications of the difference between being in error and lying. To err is human, but to deliberately fabricate for the benefit of oneself or one’s group is a matter on which particular humans can and do differ morally.
Kant is especially well-known for having claimed that it is never ethical to lie. This makes Kant's ethics difficult to accept in terms of "white lies," which are told for another person's benefit rather than for selfish reasons. In terms of universalizing lying as a practice, were everyone to decide to lie on a regular basis, the truth would lose its value because no one would trust it. Lying would no longer have its intended value either, as it would be expected and therefore ignored. In other words, universalizing the maxim of lying would be self-contradictory concerning lying itself; lying universalized would involve a logical contradiction. Put another way, lying as a practice universalized would insult reason itself, and thus be unethical to any rational nature. As human beings, we have such a nature.

It is admittedly strange to think of "unethical" as being in terms of a logical contradiction being contrary to reason. It is easier to think that a logical contradiction is not possible for a being having a rational nature. Kant is saying that as we are rational beings, it is unethical for us to do something if universalizing the practice to it being done by everyone would involve a logical contradiction. Is this criterion simply an expedient method for determining whether a given practice is ethical or unethical, or was Kant really thinking of ethics differently than we think of ought? If the latter, even saying that a logical contradiction is unethical because it insults reason would introduce emotion where there is none; Kant's notion of what it means for some action to be unethical would be that reason is being used against its own rational nature.

Put in Kant's easier formulation that is much easier to understand, lying involves treating other people as one’s means only, rather than also as ends in themselves. You can still treat someone as your means, as long as you also treat him or her as an end in himself or herself too. This formulation has been likened to the Golden Rule: Do unto others as you would have done to you. However, I wouldn't like to be anyone's means and yet Kant permits this as long as I'm also treated as an end in myself (as a rational being). So I don't think Kant's ethic is as idealistic as is the Golden Rule.
Applying Kant to the case at hand, James Clapper either testified in ignorance or to deceive the senators. If the former, the NSA should not have sent him to testify. Either the agency was at fault for sending the wrong guy or Clapper should have known of the program but did not. If during a NSA meeting covering the program he had been daydreaming of spying on the woman living next door, he is culpable. He would have been using his boss as a means rather than also as an end in himself.

Alternatively and more likely, if Clapper knowingly deceived the committee, either on orders from the NSA or from his own will, he used the senators as means rather than also as ends in themselves. Put another way, I doubt that Clapper likes to be lied to; neither does Diane Feinstein or any of the other senators. Nor do the people of the states that those senators represent, or the general public for that matter. An agent knowingly misleading his or her principal is a particularly sordid instance of lying; not only is it selfish and inconsiderate, it is also insubordinate.

Clapper either testified in ignorance or to deceive the senators. If the former, the NSA should not have sent him to testify; the fault is not necessarily his own. However, if he knowingly deceived the committee, either on orders from the NSA or from his own will, he used the senators as means only, rather than also as ends in themselves. Therefore, whether out of ignorance or deceit, Clapper’s error or lie points to insufficient democratic accountability of the NSA to Congress. If NSA chief Gen. Keith Alexander lied to Congress in saying that the NSA could not determine how many U.S. communications were being gathered at the time when in fact the NSA was using its auditing tool Boundless Informant precisely to determine the number of such communications, a disturbing pattern rather than a single incident of faulty testimony would characterize the NSA.[3] In particular, the agency could have developed an organizational culture in which the elected representatives in Congress and even truth-telling itself are insufficiently respected and valued. Such anti-democratic values may be the underlying culprit behind what could be a cavernous hole in democratic accountability—the breach of which would of course maintain the illusion of ongoing accountability.

 Kimberly Dozier, “James Clapper: Answer on NSA Surveillance to Congress Was ‘Clearly Erroneous’,” The Huffington Post, July 2, 2013.2. Jeremy Peters, “Feinstein’s Support for N.S.A. Defies Liberal Critics and Repute,” The New York Times, July 1, 2013.
3. Kimberly Dozier, “Edward Snowden: NSA Lying, Collecting All Communications Into and Out of U.S.,” The Huffington Post, July 8, 2013.

Monday, July 1, 2013

Starbucks: Behind the Bar

Sometimes, as though the planets were to suddenly align, a coincidence occurs that so marvels the mind that one cannot help but wonder whether something more is involved in some larger picture. Such is the case for me today regarding the illustrious Starbucks company. A story in the Wall Street Journal so fits what I want to write about that I cannot help but wonder if my message were meant to spread. In short, my story involves Starbucks warming milk and the Journal's involves the company cooling it. It is as if yin and yang were finally in balance, and yet I find myself in a state of disequilibrium with that company. Chaos theory tells us that order and chaos can indeed coexist. Perhaps this is the nature of life itself, or at least human society.

                                                                    Charging More for "Customized" Drinks
Is Starbucks short-changing itself in being too petty in charging customers for "extras?"     Image Source: Bloomberg