Anything goes

I've been in a muddle over the Yoo business, particularly in connection with the defense of war criminals I mentioned yesterday. Part of the problem is I can't formulate the problem.

On one hand, there is the decline of symbolic efficiency. Anything goes. Any interpretation is possible. The administration asserts success in Iraq as the media say failure. The president says economy is strong as economists say it's the end of the world. The situation is actually worse than 1984 because of the presence of multiply contradictory claims: it's not that people receive one message that is false. It's that we receive multiple messages that intersect, clash, overlap, inflect, permeate, undercut, and support each other. Anything is possible. Really, it's no wonder that Clinton has repeated her Bosnia story over and over; she's repeating the political pattern of the last eight years.

Paul has written a paper on Yoo that I read, in part, as rendering Yoo emblematic of the current situation (I hope Paul will write some posts here or at Long Sunday about it). In Yoo's hands, the Constitution can be read as allowing for absolute executive power and torture if the president decides torture is necessary.

Similarly, the video I linked to yesterday (This is what justice requires) features victims of torture describing not only how they were tortured, but the fact that they were arrested and held on nonexistent charges. Particularly chilling, though, is something barely hinted at in the video: that this is the core of the defense of the former head of the Chilean secret police. Apparently, he is charged with "permanently disappearing" people. But there is no such crime in Chilean or international law. Victim and torturer are identified and this identification enables a switch such that the torturer is now the victim.

On the other hand, Jack Balkan says, wait a minute, the legal system always involves competing positions:

Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization.

Likewise, the program my former student was involved in was one working to bring the adversarial legal system to Chile. In an adversarial system, the bad guys are entitled to a defense.

The Balkan passage above fudges the matter with the phrase "legal sounding" language. It's not the case that arguments defending slavery, Jim Crow, etc simply sounded legal but were not. Rather, they were legal at two levels: as established law (for a while) and as allowed for in an adversarial system. The more complex part seems to be the latter: the way the adversarial system relies on the repetition of arguments the adoption of which would destroy it. These arguments aren't exceptions. They are the Constitutional fuel.

Balkan argues that the system as a whole can withstand bad arguments. I'm not convinced, yet, but he might be right. I'm not convinced for at least two reasons. First, the costs of the adoption of the interpretations offered by bad arguments are very high. The system might survive, but it survives as an unjust system. Second, viewing system survival as a happy outcome seems to presuppose an underlying notion of improvement and progress: slavery was overturned, women can vote, rape is a crime. The notion of language as open and alterable which seems to underpin Balkan's view, though, doesn't guarantee that changes in meaning will be progressive. A system can rot from within and have to have its remnants defeated and dismantled.

Are there limits to the badness or extent of the arguments that are the Constitutional fuel? Are some beyond the pale? Completely destructive with no redeeming value, poisoning all meaning and argument?

Comments

[Dominic]

Are there limits to the badness or extent of the arguments that are the Constitutional fuel? Are some beyond the pale? Completely destructive with no redeeming value, poisoning all meaning and argument?

This puts me in mind of the section of Godel, Escher, Bach about records specially designed to break record-players (IIRC they encode a pitch which resonates with the record player apparatus itself, causing it to vibrate until it falls apart). It's a sort of constitutional/free speech halting problem, I guess.

Other variants: the Monty Python sketch about the joke so hilarious that anyone who reads it dies laughing.

"He that toucheth pitch shall be defiled therewith".

[old]

I think you have to fall back on your communist instincts here, Jodi. The most important with actually existing adversarial systems in a capitalist world is that those with more money get to make a stronger case for their arguments, whether bad or good. So a good argument, badly argued, often, often loses to a bad argument, well argued.

My two cents, only partially thought through during my year in law school at Duke, and a bit beyond, is that an adversarial system, at the level of lawyerly representation, with a fairness ensuring *and* truth seeking judiciary is ideal. Part of fairness ensuring would have to include measures to preclude one side or the other from gaining or maintaining a substantial legal resource differential.

The U.S. system strives to include much of what I'm after here, but fails miserably in its attempts with respect to legal resource differential and explicitly refuses the idea of the judiciary as truth seeking. Judges in the U.S. are generally strictly bound to the cases as presented by the two sides and are not allowed to independently pursue the discovery of facts and legal arguments which are relevant to the matter at hand, but haven't been proferred by one side or the other.

[Jodi]

Dominic--I've been talking about your comment for the past few days; I had responded, but forgotten to do the second step so lost the comment. argh. anyway, I find it weird that a quick revealed no applications of the halting problem in law or political theory. Also, it seems like Rousseau and Hobbes might be understood as giving rules that could be understood as meant to prevent such problems (restrictions on sovereignty in terms of what the sovereign can do to itself). I wonder if there is a good way to describe these problems in political theory.

Old--your point is a good one. I wonder, though, if the contradictions are strictly because of the contradictions of problems/signs of a contradictory world rather than fundamentally undecideable. I think the latter is the case. Where Paul and I disagree is that he seems to think that the undecideability is a product of bad faith--the proper interpretation of precedent would prevent the emergence of contradictions. I don't think so. I think that stains/knots, sticking points are inevitable (which is why I like Dominic's turn to Godel etc). I wonder if they can be understood in terms of drive.

[old]

Stains, knots, and sticking points are most definitely inevitable, and, in fact, are what makes law so utterly fascinating. One preserves the past in law by destroying it with contradictions that must be dealt with creatively in order to invent the present.