an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Brishen Rogers' post on Occupy Wall Street is a must-read for those seeking to understand the movement. As someone who's done community and union organizing, he "gets it" on a deeper level than I can. As Occupy fragments and diversifies this Spring, we need more analysis from those inside mass movements. I have a few comments on his locating the unity of the movement in resistance to "neoliberal governmentality." I've previously made a case for the moral authority and conservatism of OWS. I now want to describe the secular and spiritual virtues cultivated in resistance movements.
Rogers observes that Occupy is fighting against the submission of every "dimension of contemporary existence . . . to an economic rationality." The movement stands against the constant encroachment of a "calculus of utility, benefit, or satisfaction" and "a microeconomic grid of scarcity, supply and demand, and moral value-neutrality" on everyday life. But these concerns can seem very abstract. What does "neoliberal governmentality" to do people? What is the moral psychology underlying it?
The Neoliberal Self
In a paper on social media, Ilana Gershon calls the "neoliberal self" a "compilation of represented assets and skills." This "collection of assets" must in turn "be continually invested in, nurtured, managed, and developed." The pressure creeps into all aspects of life---even online self-presentation. As Gershon observes:
[Facebook] presented people with a profile “self” that could be managed through a reflexive distance similar to what a US neoliberal perspective encourages in self-management and business management. Through Facebook, people can practice US neoliberal techniques for valuing, enhancing, and managing their alliances.
While workplace precarity encourages constant "self-improvement," shadowy networks of advertisers and data miners work to make the rest of the online environment a barrage of temptations. Rob Horning has written a brilliant series of articles on the topic, including one featuring Joseph Turow. As Horning notes about two recent interventions in the area:
Charles Duhigg’s article in the New York Times Magazine and this excerpt from Joseph Turow’s book at the Atlantic. . . are about the rise of data mining for marketing purposes---the efforts to assign consumers a profile that will then determine their status in various retail spheres and what sort of deals they will be offered and ads they will see . . . . Both give a sense of how our ingrained commitment to the values of consumerism then opens us to being further programmed in our habitual choices: consumerism is the maze in which retailers can hide the chocolate in the form of various goods. And scientists and statisticians are only too happy to treat us like lab rats we’ve become.*
In another post, Horning further explains the implications:
If our lives in public are underwritten by our value to advertisers, our public selves will end up indexed to that value for everyone, and our private sense of ourselves will be to a degree dictated by the boundaries of the sensorium marketers can create around us with increasing specificity. Our behavior is tracked and reprocessed to tell advertisers exactly who they can tell us to be and have us accept it. Or think of it this way: Our data helps them find the most profitable version of ourselves, regardless of whether that is our best self, or even a better self.
So if neoliberalism's vices include consumerism, selfishness, and a brutally calculative attitude, what are Occupy's virtues? Here, there are both secular and spiritual accounts of what could be going on. On the secular side, Helen Nissenbaum and Yochai Benkler have suggested that many virtues are practiced during "collaboration among large groups of individuals . . . who cooperate effectively to provide information, knowledge or cultural goods without relying on either market pricing or managerial hierarchies to coordinate their common enterprise." These virtues include generosity, kindness, benevolence, camaraderie, and civic virtue. McKenzie Wark has stated that Occupy can "put back on the agenda the only worthy goal modernity ever had: the incremental overcoming of unnecessary suffering," by exemplifying it:
[T]he best university is now open, and it is, if not free, taking donations in kind. The Occupation is a living workshop . . . in the gift economy of exchange. Every day, people buy stuff and convert it back into gifts to total strangers. Every day, people discover solidarity through camping together, cooking together, and picking up the trash. All that is as valuable as the General Assembly. Every day, people take time out from their jobs or caring for their families to just be in an occupied space. . . . These spaces are poorly equipped, shoddily built exemplars of something remarkable. That there could be other social relations, besides finance, security and the commodity.
Wark himself wonders if "this stuff is remotely scalable." It seems an outgrowth of small community or even familial relations. As Aaron Bady writes, in a review of David Graeber's Debt: The First 5000 Years:
If my relationship to my parents was a financial one, then I could pay it off and be done with them (or they could forgive the debt and be done with me). Or (and here is where it gets interesting), they could present me with a bill, demand that I pay it, and throw me in jail if I failed to do so. . . . This is just a thought experiment, of course, but the point of it is to bring out and make explicit that contrast. . . .
When we are with our friends and family and those to whom we feel some sort of connection, we mediate that connection by refusing to define down our relationship to strict monetary value, refusing to exploit our connections for strictly monetary gain. We buy the next round, because it brings us closer; we “lend” a friend our car because they are our friend, and all the more so for the un-quantifiable, non-monetary debt which is thereby created. Even with strangers, as Graeber observes, we are strikingly generous, far more generous that an economics treatise could ever admit. We share, both because it makes us feel good (and makes good, practical sense) to share with people we share a world with. And we already know it. And it works.
The critic might respond: yes, it works there, but the debt-world of "math and violence" is the only thing that can hold a complex global economy together. However, neoliberalism isn't really working for many Americans. Maurice Stucke begins his article "Antitrust and Occupy Wall Street" with a sobering list of economic failures:
The crisis in capitalism [recognized even in news sources like the Financial Times] might have come as a shock to some, but not to many middle- and lower-income households. Well before 2008, middle class Americans saw, despite gains in productivity, little gains in income. When mass unemployment came, the middle class shrank further. America’s safety net, U.S. Senator Bernie Sanders described in his historic speech, is threadbare.
America’s infrastructure is crumbling. Primary and secondary education for many families is inadequate. Incarcerations, home foreclosures, underwater mortgages, the number of people in poverty, and the public’s dissatisfaction with Congress are at record highs. With America’s debt in the trillions of dollars, a larger fiscal crisis looms. Many Americans in 2012 were dissatisfied with the United States’s moral and ethical climate (68% surveyed), the federal government’s size and power (69%), and the state of America’s economy (83%). Given the dissatisfaction, it is a wonder why more people are not protesting.
If antitrust law is to have a future, people like Stucke will need to be much more influential in agencies like DOJ and FTC, and in the courts. Part of what makes his work so relevant is a recognition that the "very serious people" now guiding our economic debates have failed, repeatedly, to solve crushing economic problems. However utopian OWS's solutions may seem, its account of the problems of contemporary neoliberalism is powerful. We can no longer trust a "a set of experts who have already compiled an atrociously bad track record on their own terms."
The Spiritual Side of a Resistance Movement
Now if you asked me if I objectively believed that things would improve---that the economy would become more responsive to genuine human needs, or even that minor reforms have much of a chance of surviving an onslaught of barely regulated political spending---I'd have to say no. I was able to muster a bit hope for health reform a few years back; I couldn't even do that for finreg. Rather miraculously, Occupy the SEC could, penning a remarkable 325 page comment letter on the Volcker Rule that was well-received by many financial journalists. But even parts of that letter seem written more in a spirit of resignation than hope:
The Proposed Rule . . . evinces a remarkable solicitude for the interests of banking corporations over those of investors, consumers, taxpayers and other human beings. In their Overview of the Proposed Rule, ““the Agencies request comment on the potential impacts the proposed approach may have on banking entities and the businesses in which they engage,”” but curiously fail to solicit comment on the potential impact on consumers, depositors, or taxpayers. . . .
The ““invisible hand of the free market,”” that darling cherub of neoliberal economics, will likely push much of the current proprietary trading into the folds of hedge funds or traditional investment banks, not eliminate them outright (assuming, of course, that such activities actually add productive value to the economy). The Volcker Rule simply removes the government’’s all-too-visible hand from underneath the pampered haunches of banking conglomerates.
Even those keenly aware that "politics is a strong and slow boring of hard boards" know the repeated futility of fighting Wall Street's power. So why continue?
I think Brishen's comparison of Occupy to religious social movements helps explain the persistence. I recently heard Nathan Schneider (of Waging Nonviolence) talk about the Catholic Worker's response to Occupy---which was essentially a variant on "we do this every day." Even when the struggle for peace, or the task of feeding the hungry, seem as massive and endless as sweeping the sand from the shore, they continue. The simple insistence on doing acts because they seem right or just or sacred, without regard to consequences, is part of the beauty, mystery---and, yes, frustration, generated by a religious point of view. Religion is certainly not necessary to such a worldview, but it does provide a galaxy of figures, in both myth and history, who stand as exemplars. As Clifford Geertz has explained:
The religious perspective differs from the common-sensical in that . . . it moves beyond the realities of everyday life to wider ones which correct and complete them, and its defining concern is not action upon those wider realities but acceptance of them, faith in them. It differs from the scientific perspective in that it questions the realities of everyday life not out of an institutionalized scepticism which dissolves the world's givenness into a swirl of probabilistic hypotheses, but in terms of what it takes to be wider, nonhypothetical truths. Rather than detachment, its watchword is commitment; rather than analysis, encounter.
And it differs from art in that instead of effecting a disengagement from the whole question of factuality, deliberately manufacturing an air of semblance and illusion, it deepens the concern with fact and seeks to create an aura of utter actuality. It is this sense of the "really real" upon which the religious perspective rests and which the symbolic activities of religion as a cultural system are devoted to producing, intensifying, and, so far as possible, rendering inviolable by the discordant revelations of secular experience. It is, again, the imbuing of a certain specific complex of symbols---of the metaphysic they formulate and the style of life they recommend---with a persuasive authority which, from an analytic point of view, is the essence of religious action.
The escape from calculativeness and into virtue is also a part of the freedom of thought of an academic. I only rarely write from a perspective of ultimacy, but it's liberating to do so. I have little hope that an article like "Two Concepts of Immortality" (Download Rank: 103,833) will have much impact on the health care establishment, or that my recent intervention on Catholic Social Thought and IP will zip through the halls of the Copyright Office. I'm sure that our hard-headed, business minded Chief Justice would consign such projects to the dustheap of Kantian Bulgarian evidence law. The corporate university model is already squeezing out such "useless" musings.
Of course, faith itself has many facets. There is the fideism of the tag attributed to Tertullian, "I believe because it is absurd;" that dogged sentiment helps moral revolutionaries persist in the face of long odds. Another facet of (my) faith is a Thomistic tradition that believes in the harmony of the deepest insights of reason with revelation. That side strives to justify hope, underlining again and again the wanton cruelty of an economic system that lets some pile up billions of dollars while preventable starvation and illness stalks the globe. To describe it is to refute its rationalizers. The sheer cussedness of willed belief gets one through the times when reason is ignored or discarded; reason in turn tempers the passion for justice that always threatens to "ruat caelum."
Whether secular or spiritual, the virtues of resistance to neoliberalism are many. This is one final aspect of the conservatism of OWS that I failed to mention earlier. Thinkers on the American right have been far more congenial to talk of the soul and virtue than those of the technocratic center. Occupy takes up their invitation to consider how foundational social arrangements are shaping our habits and dispositions.
*I have inserted illustrative links in that and other block quotes.