My travelogue continues … By the way, check out friend-o-the-blog Sam Bikinoraion’s blog – he is also going round the world this year, and seems to be visiting a load of my favourite places, which I didn’t fancy taking the kids to. This episode takes me through Greece, and is posted a bit in arrears, as I headed off to the desert after the events described herein …
1.Pomegranates by the roadside
It is one of the strangest things, to a Northern European at least, to see a pomegranate just growing there on a tree. I thought they were apples for a while, but there they were – all red and exotic and just hanging there, as if this was a perfectly normal thing to have in your front garden. And of course it is – and lemons, and quinces and figs too. The urge to just reach up and pick one, then continue to walk along the road eating it, was almost irresistible. But I presumed that would be bad manners and I really didn’t want to give a bad impression of myself.
2.The politest man in the world
I’ve met the politest man in the world, and he was Greek, from Thessaloniki. It was a few years ago and we were going to the wedding of another friend, in FYR Macedonia. We’d made some complicated arrangements to stay in his apartment on the way up to Skopje, and when we were arrived we found a bottle of wine, some cakes and a heartfelt note of apology that he wasn’t there himself to greet us; this had never been the arrangement, he just apparently felt a bit bad about letting us stay in his apartment without also looking after us in a dozen other ways. We met the next day at the wedding and … well, it’s hard to describe, if you haven’t experienced something like it. It is an extraordinary sensation, to be caught in a focused beam of high-intensity good manners. The rest of us try to go about our day without giving needless offence, and perhaps occasionally doing someone a good turn if we can, but for some people, politeness is a positive presence rather than an absence of uncouth. It’s worth seeking out, I can tell you. He’s a professor of Byzantine philosophy these days, at the university in Crete, I think.
The other thing I remember about that trip (apart from the wedding itself, and the horrific mouth ulcer I had at the time, and many other details of limited relevance to this piece) is that it took place in 2004, at exactly the time when Greece was playing in the European Championship finals for the first time in decades. For the first week of the championships, the Greek guys were all at pains to tell the British, Germans and other members of the party that the football was really not that big a deal and that basketball was a much more popular sport in Greece. This made sense; the Greek national team was a collection of journeymen from the lower halves of the top tier of European football, and not expected by anybody to go anywhere. But then they started winning.
Of course, this meant that for the second week of the trip, the relative popularity of basketball and association football took a sudden and pretty emphatic reversal, and the entire country went football mad. So we watched every game, planning travel around the need to be in a bar by kickoff time. And the Greeks kept winning. There never seemed to be any star turns or particular pieces of skill and beauty, but they passed the ball, defended doggedly and went on rolling over much more prestigious teams. And then they only went and won the whole thing! It was a great day for the Greeks. And to think, this came in the same year as the Athens Olympics, another massive success that they had pulled off in the face of the whole world telling them they weren’t good enough. Can you blame them, however badly things went in retrospect, for going into the formative period of the European credit bubble with something of a feeling that the wind was in their sails?
3.The proverbial taxi drivers
I never got ripped off once while I was in Greece. In fact, technically I got ripped off a negative amount, as a railway clerk told me that my son looked like he was only just twelve, and sold us an under-twelves ticket for him. On more than a couple of occasions, though, I was warned in graphic terms about the dishonesty of taxi drivers, and in one case told straight up that I had been charged double the rate for a short ride. Which interested me, because I had been paying attention to the meter and this simply wasn’t true; I’d been charged exactly the correct amount, but the person I was talking to had forgotten about the (clearly displayed) extra charge for the vast amount of luggage I was shifting about the place.
This is my Thomas Friedman moment of epiphany, and like the great New York Times pundit, it of course involved taxi drivers. Greece isn’t a place where people act out of dishonesty, but it’s a place where people’s perception of the venality and untrustworthiness of their compatriots is a weird source of national pride. Greeks love Greece, but they’re not too keen on the Greeks.
I found myself, as I often do, using the north-west of England, and specifically Merseyside, as my benchmark for indicators of a low trust society and I didn’t see them. The booze in the supermarkets was mostly on open shelves in the tourist towns – in Athens, there were locked cabinets for imported rum and Scotch whisky, but the beer, wine and ouzo were all within hand’s grasp. Try finding an off-licence in Liverpool which doesn’t keep its stock under lock and key. I walked past two or three filling stations which had clearly stopped trading a while ago – the windows were intact, and you could see cigarettes behind the counter. Whatever is structurally wrong with the Greek economy, and despite a few quite indicative behavioural economics experiments which pupport to show it’s the lowest trust society in Europe, I don’t think it’s quite that. There’s something more complicated going on. After all, if Greece is characterised by low levels of trust, how come they do so well in shipping, an industry in which there is absolutely legendary levels of reliance on gentlemens’ agreements and binding handshake deals?
4.The columns of Corinth are topped with rusting steel
The signature architectural detail of Greece, Turkey, some parts of southern Italy and more or less the whole Middle East is visible wherever you drive – four sticks of rusting iron rebar sticking out of the top of every concrete column. In the good old days of 2000-2005, we used to tell each other that this was a fantastic sign of growth potential – when you see a building that’s in use, but has rebar sticking out of the top, what you’re looking at is a building that’s being put up one storey at a time, as the owner manages to save up enough money to put up another level. And therefore, that this denotes an under-served financial service market, where in the long term it will be possible for people to borrow money up front and build the whole thing, more efficiently, in one job. I don’t know whether the theory had anything to it or not, but photos of hotel developments of this kind were a staple of bullish presentations back in the go-go years. It doesn’t carry quite the same connotation now, of course.
5.Alexander the Great
Someone more desperate for a subject than me in writing about Greece can always create a moment of taxi-driver epiphany by finding anyone of Greek descent and engaging them on the subject of either a) the correct nomenclature of the Former Yugoslav Republic of Macedonia or b) whether Alexander the Great was a Greek or a Macedonian. You only need to pick one of the two, as any conversation on one will invariably tend to shade into a disquisition on the other and back again.
I can work out Greek words phonetically, as long as they stick to using letters that are also the names of important physical constants or option pricing parameters. And once you’ve worked out the transliteration, most of the stuff that’s on billboards or menus is going to sound like either the English word or the French one or the Italian one. I could occasionally puzzle out some of the graffiti too; I have to say that the usual slogans about Israel aren’t any less unattractive when there’s a sigma as the second letter rather than a Roman S. There were a lot of these on the walls, as far as I can see; wherever you go in the world among dispossessed or economically disadvantaged people, the one constant thing you can expect is that they know which side of the Israel/Palestine conflict they’re on.
7.Floating down the Adriatic
The ANEK Lines ferry goes from Venice to Igoumenitsa, and then on to Corfu. It departs from the freight terminal at Fusina rather than the cruise terminal in the city, which means it is kind of a drag to get to – the way we did it was to take a water taxi to the port, then draw up so close to the ship that we could practically touch it, then get shouted at excitedly by a group of Italian stevedores that we were attempting a definitely illegal and possibly suicidal maneuver in climbing up a ladder that wasn’t meant to be there. Then we went to the waterbus stop and schlepped two kilometres to get back to the ferry port and queued up.
It didn’t used to be like this; when we booked the tickets, the ANEK boats departed from the cruise terminal downtown in Venice. But when we booked the tickets, the boats were more like cruise ships; they had swimming pools on them. Those boats are gone, unfortunately (although they remain on the ANEK website as of time of writing); sold as the company tries to keep its finances from taking on too much water. They’ve been replaced by roll-on/roll-off lorry carriers, which is why they go from Fusina.
There are still some passengers, walking round the cabins and sitting in deckchairs up on the helipad on the top deck, but it’s mainly lorry drivers from Greece, Turkey and the Balkans, taking it easy for 24 hours on their way to and from the big roads of Europe, delivering agricultural produce. They do their best to live up to every possible comic stereotype, wandering round with cups of strong coffee in hand, constantly smoking cigarettes and sitting round tables for endless and noisy games of backgammon. I left them to it, climbing up to the top deck to watch my children run endless circles round the helipad. Even on what is basically a jumped-up container lorry ferry, you can kind of see the appeal of ocean cruises – sitting doing nothing and watching the sea is a perfectly pleasant way to let the time pass by, and if I get to the age where I can’t do anything, I’d just as willingly do nothing on a boat as anywhere else. ANEK Lines also boast in their onboard restaurant that they have their own olive oil, an example of vertical integration that I am not sure will be entering any business school textbooks.
Igouminetsa rather depressed me. It’s a port town, with all that implies, and I am not quite so innocent as to be able to look at a building with a pink frontage sign saying “Cafe Amour” with a picture of a cocktail glass and a female silhouette, and mistake it for a cafe. I wonder at the level of optimism and self-delusion that makes a brothel-owner bother with these attempts at glamour and sophistication; I doubt that his clientele of matelots and lorry drivers are really all that familiar with the bright lights of Montmartre, and even if they were, I think that would make them less likely to seek similar pleasures in a sauna two streets back from the docks, not more. I didn’t stay there for long – just long enough to amble down to the bus station, realise that I had been caught out once again by the one hour time difference between Greece and CET, then amble back to the ferry terminal and pile my family into a taxi.
This is mainly about Greece, but the last episode finished in the Italian lakes, and it really would be remiss of me to fail to mention that Venice, like the Aiguille du Midi cable car, has to go into the category of “terrible tourist traps that are really, really worth it”. Because I worked for a French bank, I’ve never really been able to get my mind round the idea of Paris as a city of romance; I navigate my way around it with reference points that are the offices of fund management firms, banks and government departments. But Venice is perfect; tourism is the industry there, and the city has more or less made its peace with that, although there is a hell of a lot of manufacturing that goes on in the suburbs. It’s quite perfect, and it grows on you really quickly – after three days staying there, my children were shouting “Our Campo Is The Best Campo Of Them All”, unintentionally rediscovering the literal concept of campanilismo.
9.What happened here?
You can’t write about Greece, at least not at the present time, without making some kind of stab at the question of “What the hell happened here?”. I guess my theory, which is heavily shaped by “Greece’s ‘Odious’ Debt by Jason Manolopoulos , is just as simple as “same thing that happened everywhere else, but Greece was in worse shape to bear it”. Everyone, Europe, USA, everywhere, went a bit debt crazy between about 2000 and 2007. The German consumer didn’t, much, but their banking system did it on their behalf.
Does this mean it wasn’t Greece’s fault? Yes and no. Should we instead blame the irresponsible banks who lent them the money? Also yes and no. But all the yesses and noes are really covering up the underlying correct answer to that sort of question which is that “questions of praise and blame don’t really match up well to the thing we’re trying to analyse here, because it’s at its heart an engineering and control system, not a system of ethics”. I think I am going to have to go to a digression here …
10. A disquisition on the nature of debt
What is debt? It’s a promise to pay back a specific amount of money at a specific time. Why is it so popular – why do people always seem to end up getting into it? Why, for example, don’t people make more equity investments, buying a share of someone else’s profits and sharing their risks in the way in which Islamic banking is meant to operate?
Basically, because debt has one big advantage, and it’s the same advantage that market economies have over command economics – it’s really really efficient in terms of the amount of information that people need to gather about each other. If you’re lending money under a debt contract, all you need to think about is Do I think this guy is good for the money?, and all the borrower needs to think about is Can I pay this back?. If you’re trying to make an investment and share the risks, all sorts of other questions come into play: How much could this be worth in a really good outcome? What further projects might grow out of this one? What effect will the sharing of the upside and downside have on the way the thing is managed? Am I selling my shares too cheap?.
If you’ve ever watched “Dragons’ Den” (the format was broadcast as “Shark Tank” in the USA), you’ll note that the real human drama in the series is not really when the entrepreneur is pitching his or her new invention. What people come to watch that show for is the bit where one of the investors makes an offer. The guy has said he wants £200,000 for 10% of his company, and Duncan Bannatyne or equivalent says he’ll give the money, but he wants 40%. And the entrepreneur sweats on the spot. This, in microcosm, is the stuff that gets cut out of the process when you’re dealing with debt rather than equity. David Graeber wrote a whole gigantic book, one of the messages of which was that from an anthropological view, debt contracts denatured exchange relationships and took them out of their context of cultural human interactions, but in my review, I noted that Graeber didn’t seem to appreciate the extent to which this is a collossal time saver. Having a debt relationship with someone means that they don’t really care all that much about your project as long as you pay them back, but that’s a good thing; it makes investing much less intensive in time and effort.
And this even extends into credit analysis. I once calculated, to win a bet with a client, that given the volume of banking transactions, if banks were to carry out a full credit assessment on all of their counterparties, every time they incurred a new exposure, then this would take up all of the time of every Chartered Financial Analyst ever to have got the qualification, doing nothing other than these credit checks. It’s literally impossible for the system to work without a degree of blind faith that most credits are money-good.
The conclusion of this sketch of the nature of lending is that it really is that there’s a limit to the amount of work which it was ever sensible to ask people to do in terms of imagining the kind of outcome that actually occurred. From both the banks’ and Greece’s point of view, these weren’t bad loans – they were good loans which went bad. And to be honest, even if banks and the Greek government had decided to be super cautious and ask themselves if it was really sustainable for a country to have a normal European-scale welfare state on the back of a normal US-style tax take, they would still not necessarily have got it right. Because everyone believed that when push came to shove, Greece’s debts were backed by the EU as a whole, which means they were backed by Germany.
Why did people believe this? Because the permanent government and the political system of the EU very much wanted them to. Even while promises were being made for rich-country political consumption that there was no “transfer union” in the euro, and no mutual guarantee, the financial markets were being given the fair old nod and wink that yes there was. Well into 2011, the official line from the Eurogroup was that it was “inconceivable” that any euro member state would be allowed to default, and two or three Big Schemes of varying degrees of legal and institutional ropeyness were cobbled together to try and prevent it happening. People were fooled because a lot of effort went into fooling them. Even the notorious Goldman Sachs transactions which had the effect of moving Greek obligations off balance sheet – well, people did notice them at the time. Eurostat cried bloody murder about them, and got told to shut up, in almost so many words, because they were making it more difficult to achieve Economic and Monetary Union. The real fault for the state the Greek economy is in has to be laid at the door of all those European politicians who decided, for the sake of their places in the history books, to launch a single currency well ahead of any real democratic support for doing so, and to paper over the obvious economic problems – like the lack of a lender of last resort, or the lack of a mechanism to balance the internal current account – by a combination of ignoring them, and claiming that the Stability & Growth Pact would have effects that would be literally miraculous.
11. Back to “what happened here?”
All of which isn’t to say that the banks deserved to get paid back, quite the opposite. Just to say that the 70% writedowns that they took should probably be regarded as them having done their stir and received just punishment for the extent to which they were culpable. The fact is that, as I say, everyone went a little bit batty in the aftermath of the end of the Cold War and the passing of the Millennium. Finland, a country which really has no obvious reason to be in the euro at all, joined it out of sheer relief about not having to worry about being invaded by Russia any more, and more or less admits the fact today.
Everyone made decisions just as bad as the Greeks, but as I say, Greece was less able to deal with the consequences. We’re talking here about a society that was torn in two by the Second World War, further damaged by the massive ethnic cleansing that created the modern boundaries of Greece and Turkey and further damaged by the years of military rule. It’s easy to start reaching for the phrase “low trust society” to describe Greece, but that isn’t quite the flavour of it – I’ve travelled in genuinely low trust societies and they’re different. Greece is a society of tight, small networks of trust, and one in which lots of groups of Greeks seem to regard each other as enemies, for reasons that reach back fifty years and which outsiders can’t hope to understand, or even identify the groups.
What’s happened here is that if England hasn’t managed to get past the Second World War culturally yet (and, my god, we haven’t), how do you expect Greece to? France dealt with Occupation at the level of the national psyche largely by repressing and never talking about it. Germany dealt with its role basically by doing nothing but talking about it. Other European countries coped in their own ways, but you shouldn’t be surprised to see that one or two of them didn’t cope. That’s what happens with big traumas; some patients get better quickly and some don’t get better at all. Georgia has recovered from the American Civil War, but Alabama hasn’t, and that was a hundred and fifty years ago. The problems in Greek society which led to its deeply dysfunctional economic model are very deep seated and aren’t going to be solved easily, and if it hadn’t been this crisis which brought them to a head it would have been something else.
And the biggest emnity within Greek society is between the population and the state, as far as I can see. That’s why I don’t see much of a future for SYRIZA in the long term, although I might be wrong in this prediction, and if I am it will be because of the personal abilities of Kostas Tsipras, who is a genuinely gifted politician. The SYRIZA coalition draws its support from public sector workers, and from the young. In other words, from people without jobs, and the people who are keeping them out of the jobs. As long as there is Germany to blame, it’s a viable coalition, but that won’t last forever..
12.Alpha, Piraeus, NBG
A good mate of mine – one of my best clients and best friends in the industry, with whom I’ve sadly lost touch – began to wax philosophical on the occasion of his giving up the active management of money. He had an excellent track record for beating the market, during a period when that wasn’t an easy thing to do. He told me, over a glass of wine, something that’s stuck with me, and which will certainly go into my commonplace book of market proverbs, when I write one.
“Danny”, he said, “I’ve looked back over my performance, and I got three things really right, as far as I can see. I was a believer in the French banks in 1998, when everyone thought that they were broke. I believed in Fred Goodwin and the Natwest acquisition. And I was early in spotting the Greek banks. More or less everything else I’ve done, I’ve destroyed value”
And to reiterate, this was someone with a really good track record. This is what it’s all about – getting the important things right, not sweating basis points on marginal quarterly returns. Careful observers will notice that out of the three big successes, two of them turned out to have been built on sand, but that’s another important one for the book of market knowledge – stock market reality is true for a time, not true for all time. So are a lot of other things.
The Greek banks struggle on, although any shareholders’ money put into them before the bailout is long since gone. The ATMs of the Alpha Bank network advertise that you can use your Alpha Bank card to pay your debts to the government in nine easy payments at 0% APR. It says something about where we are in the cycle that this is a selling point.
13. Swimming in the rain
The island of Levkada has two sides to it – an Ionian coast, where there are big waves and steep beaches, and an inland side (I forget the name of the straits) where the water is shallow and utterly still. There’s nothing quite so heavenly as swimming in a still ocean during a rainstorm. The droplets bounce up with every splash, so it looks like you’re moving through a field of dewdrop pearls, and the air you breath is filled with salty mist. I must have stayed out there for an hour before the lifeguard came to tell me to go in, because of an alleged danger of lightning. There was no lightning of course. As far as I can tell, he had come back from a lunch break and realised that if there was one idiot out there swimming, he would have to sit out on his high chair in the rain. Fair enough to the guy, I walked back in.
14.Oligarchs new and old
We were staying in a place with a view over a short stretch of sea to the archipelago which contained Skorpios, which was once upon a time the island retreat of Aristotle Onassis. I never met any Onassises when I was a Swiss banker, or any Latsises either, but I did meet a couple of representatives of investment companies which, apparently, at some point way up into their ownership structure, blended imperceptibly into one or other of the big Greek shipping fortunes. I also once had occasion to point out to a few people that the corporate structure of the Latsis fortune (basically the way in which they controlled EFG Eurobank) was distorting the entire BIS lending statistics and making it look like the Swiss banking system was hopelessly in over its head to Greece; shortly after this call, the Swiss supervisor stopped panicking and the Latsis family obligingly transferred ownership of EFG to something which didn’t show up in the statistics. The island is apparently now owned by some Russians, although you would not guess this from the mainland town which services it.
Later, we moved into another villa, in a nice little artists’ community in the mountains. The Greek islands have lots of mountains that have probably never been climbed at all – they’re not particularly difficult as works of Alpinism, it’s just that given that they’re hot, inaccessible and surprisingly dangerous because of the friable dry rock, they’re high enough or spectacular enough to be worth the trouble.
15.Into the land of the chucked cheek
I haven’t mentioned my family much in these pieces so far (apart from my wife occasionally), but I have three children. Seeing their reaction to the new places in the world is always a joy, but it’s also occasionally incredibly amusing to see the world’s reaction to them. I should possibly post a picture here, otherwise it’s quite difficult to understand what I mean, but the thing is, two of my children look like their mother, and the youngest one looks like me. So my twelve-year old boy, Joe, is perfectly fine-featured and handsome, with a developing adolescent chest and shoulders, looking alarmingly like one of the illustrations in that Germaine Greer book that caused a stir a few years ago. My ten-year old daughter, Poppy (who was clever enough to use her full name, Penelope, while we were in Greece, a decision which was much appreciated by the locals) is just a raving beauty – all green eyes and freckles and broad smiles and long hair which turns a lighter shade of brown every week. But then we have this utter little poppet called Rosie.
Rosie is five years old, and she is blue-eyed, strawberry blond haired, chubby-cheeked and generally the very idea of a storybook illustration. Because her elder sister is addicted to the “Hairstyles For Girls” YouTube channel, Rosie tends to favour either Shirley Temple curls or elaborate French-plaited pigtails, which tends to add to the effect. And the overall effect is catnip to old ladies, even back in England. Once you get outside Northern Europe, and the blue eye/blonde hair combination is exotic enough to be noticeable, she can barely walk down the street for having her cheeks pinched, asked her age, asked if she wants to stay and join a new family, and so on. God alone knows what it is going to be like in Asia; when I went to Vietnam ten years ago there were enough people wanting to rub my head for luck then, and I’m six feet tall.
This is the very definition of “white privilege”, by the way – my little girl is going to be chucked and tickled by the old ladies of multiple continents, because she’s so exotic, but I’m in a position where I can regard this as cute and amusing, because my ethnic identity is not one that tends to cause you trouble, quite the reverse. I suspect that we’ve already been getting a certain amount of special treatment on this trip, as my height and colouring marks me out pretty clearly as someone who might cause a hell of a fuss if asked for bribe, and someone who people will notice and listen to if he starts to complain. Society really has to break down very badly indeed in a developing world country before it reaches the point at which people will hassle big white foreigners with loud voices, and we’re not visiting any of those kinds of countries. It does mean that you have to get used to paying full tourist rates everywhere, but I can live with that.
So anyway, I hadn’t been expecting much in Switzerland (although my other two children tend very much to draw wistful glances from grandparent-age Germans and other low birthrate countries), and we were in some pretty rural places in Switzerland. But in Greece, the cheek-chucking and general fussing over Rosie has begun. I think it will be non-stop until we reach New Zealand.
A snatch of conversation, overheard as I was walking back from the shops to our house with some food. A starry-eyed young lady was talking to a blond, tanned, long-haired type of roughly her own age, with a full complement of surfwear logos on various items of his clothing. They’d clearly been talking a while, as he balanced on his moped and she cast occasional glances toward her parents at the beach bar.
“But what about money?”, she asked.
“I don’t worry too much about money. If I need some, I earn some”.
Clearly braggadocio of some kind or other, and I don’t believe it for a second; maybe he gets a regular stipend from mum & dad back home or maybe he spends half his life hustling to keep body and soul together. But it’s an attractive fantasy while it lasts, and it seemed to be doing him some good with the girls. In many ways I hope that me-laddo ends up in pinstripes or Dockers, taking the train in from Penge to the City and paying monthly into a Standard Life pension plan; the alternative is to gradually mature into the decidedly less romantic creature which is the aging beach bum. For the meantime, though, good luck to him. If you need some, earn some. To be honest, it’s a more sensible strategy for financial management than ninety per cent of banks and treasury ministries have been operating on for the last ten years.
Not surprisingly, the US Supreme Court’s non-decision on equal marriage has caused plenty of debate, including John H’s smackdown of NR’s Matthew Franck.
The discussion got me thinking about the broader problem of legal reasoning, at least in its originalist and textualist forms, and also in precedent-based applications of common law. The assumption in all of these approaches is that by examining (according to some system of rules) what was legislated or decided in the past, lawyers and judges can determine the law as it applies to the case at hand. There are all sorts of well-known difficulties here, such as how words written a century ago should apply to technologies and social structures that did not exist at the time. And it often happens that these approaches produce results that seem unacceptable to most people but for which a legislative or constitutional fix is impossible for some reason.
It’s always seemed to me, though, that there is a much bigger problem with this approach, namely the implicit assumption that “the law” actually exists. That is, it is assumed that, if the appropriate procedure is used to interpret the inherited text, and applied to the problem at hand, it will produce a determinate answer. But why should this be true? The same law might contain contradictory clauses, supported by contradictory arguments, voted in by different majorities, and understood at the time of its passage in contradictory ways. Most notably, the same constitution might grant universal freedoms in one place, while recognising slavery in another.
At a minimum, such contradictions mean that there is no determinate law on the particular points of difference. But the problem is worse than this. The law rarely prescribes an exact answer in a specific case. The standard view of legal reasoning is the principles can be extracted from case law, then applied to new cases. But contradictory laws and contradictory cases produce contradictory principles. The ultimate stopping point is the paradox of entailment: a contradiction implies anything and everything.
I don’t have a fully worked out answer to this problem but I think it underlies a lot of the disquiet so many people feel about legal reasoning (apart from the ordinary disappointment when the answer it produces isn’t the one we want).
From: "Barbara L'eplattenier"
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Matthew Franck advances a number of arguments for thinking the Supreme Court taking a pass on gay marriage is similar to the Dred Scott decision. I think he missed one that is at least as good as several of the ones he offers.
The Supreme court took a pass on October 6, 2014.
Dred Scott was decided on March 6, 1857.
Do you see the pattern?
If two things can be decided on the 6th day of the month, imagine what further atrocities might be in store! The Supreme Court might decide, on the 6th day of some month, that little babies should be able to get married. Or that dogs should own all the money.
(I know what you are thinking. You thought the point was going to be that 2 + 0 + 1 + 4 = 7. And 1 + 8 + 5 + 7 = 21. And 21 is divisible by 7. They’re both divisible by 7? Where will it end?)
Right. Continuing my wildly popular series of ‘let’s salvage at least something worth thinking about from the wreckage that is NR’ posts, consider what I consider to be Franck’s least obviously bad argument, from his previous post.
The courts in these three circuits wrote various forms of rhetorical twaddle to justify their imposition of a spurious constitutional right on those states. What is the ground of the right to same-sex marriage? Is it the equal protection clause (as the Seventh Circuit seems to believe)? Or the due process clause (which the Fourth appears to lean toward)? Or some penumbras-from-emanations “fundamental right” that partakes equally of both (which seems to be the view of the Tenth)? Who knows? The judges want a result, and legal reasoning is such a nuisance.
Not that it’s a good argument, mind you. But it is interesting that there seems to be an emerging legal consensus that the pro-same-sex-marriage position is rather overdetermined. Franck concludes that therefore the arguments must all be twaddle, devoid of reason. But, if you actually read them, they obviously are not. So how should we think about this?
Consider an analogy. Suppose we got up tomorrow morning and noticed, for the first time – somehow we just hadn’t been paying much attention, I guess – that people born on the 6th day of the month have always been legally forbidden to marry. But now cases are making their way through the courts, and decisions are coming down, mostly strongly in favor of the get-married-on-the-6th side, but they are kind of a mixed bag. One court says forbidding this thing is a violation of equal protection. Another says forbidding this thing is a violation of due process. Still another hints that maybe people have a ‘fundamental right’ to marry, even if they are born on the 6th, even though the Constitution totally doesn’t say that they DO have that right, in so many words. Some judges seem rather impatient with the whole business, like they know what the right answer is, and are just finding any old convenient, colorable reason for getting it done already. Surely, if it’s so obvious as that, we should be able to agree on WHY it is obvious, legally!
In short, we are facing a farrago of fallacious fancies, as activist judges seek to legislate their politically correct diurno-relativistic beliefs, from the bench. How can the Republic remain strong? (Outside the courthouses, protestors kneel, despondent; their ‘Sixth Day, No Way!’ signs damp in the rain.)
My analogy is rather extreme. But it gets at an important point about the really staggering degree of moral shift we have experienced, culturally, over the same-sex marriage issue. A critical mass of people now see no moral sense, whatsoever, in opposing same-sex marriage, legally. No matter how you slice it, it’s arbitrarily harmful discrimination. (If Franck is genuinely curious what people’s moral – as opposed to legal – reasons are, he can ask them. There are lots of moral arguments, and people now find them overwhelmingly convincing. I do.) This isn’t a legal argument, of course. But it sufficiently explains why, suddenly, not just one but several lines of legal argument seem basically plausible. People haven’t suddenly lost the ability to reason legally. Rather, they have a new moral framework in which old abstractions about rights and equality carry fresh implications.
Basically, Franck’s argument is this: if it was so damn legally obvious, why didn’t anyone notice before? This just reduces to: if it was so damn morally obvious, why didn’t anyone notice before? And the answer is: it’s actually kind of mysterious why so few noticed before, then suddenly so many did. But it’s not illegal that this happened. Hence there isn’t a legal objection to the implications of it having happened.
Conservatives like to complain about ‘living constitutionalism’. I think that’s mostly silly. But it’s also largely beside the point, at least in the same-sex marriage case. If several legal lines appear out of nowhere, it might seem that the legal tree must have grown. So if you don’t think the law is a tree, something bad has happened to the law. Anyway, it needs to be pruned back to its original shape.
But consider another silly argument. Suppose tomorrow we all decide that dogs are self-evidently people, in all morally relevant senses. Any attempt to treat dogs morally differently from people would be arbitrary. We’re sure of it! (No, I have no idea what we are thinking. Just go with it.) Well, that has huge legal implications. Suppose a few heroic souls want to fight against this moral shift by resisting all accommodations to it on the legal front. They don’t want dogs getting all the rights that, until now, ‘people’ have enjoyed. The only way to accomplish this, legally (as opposed to morally), is to change the law so that ‘people’ are not so equal any more, in principle.
It’s a classic conservative witticism (Leopardi, The Leopard, isn’t it?) that sometimes, in order for things to stay the same, they need to change. In the case of same-sex marriage, given the moral change, the thing that needs to change, to keep there from being change, must be the law. If you can’t convince people that there’s a moral problem with same-sex marriage, the only way to preserve traditional marriage, as a legally exclusive form, would be radical judicial activism about due process, equal protection, maybe some other things. I trust Franck has the stomach for it!
Public Understanding of Science
Measuring science or religion? A measurement analysis of the National Science Foundation sponsored science literacy scale 2006–2010
When a militarily powerful country tries to govern the affairs of millions of people on the other side of the planet, we shouldn’t be surprised that chaos results …
That’s of the grab from my latest piece in Inside Story, commenting on the utter incoherence of US (and therefore Australian) policy in the Middle East. An extended version:
How could it be otherwise? A rich and militarily powerful country has taken it upon itself to govern the affairs of millions of people on the other side of the planet, of whom it knows nothing. Its emissaries routinely elevate particular individuals, ethnic groups, religious sects and political parties as favourites, then just as quickly dump them in favour of new friends. Its tools vary randomly from overwhelming force to plaintive exhortation, with no clear or consistent rationale.
The key observation is that, with the exception of slavish obedience to the whims of the Netanyahu government, the US has switched sides on almost every conflict in the Middle East in the space of a couple of years.
My policy recommendation to the US is an announcement that, from now on, the people of the Middle East would be left to sort out their problems for themselves. In particular, it would be useful to state that the United States has no strategic concern with Middle Eastern oil, and that energy policy is a matter for individual countries to determine according to their own priorities.
Inside Story doesn’t appear to take comments so read there (lots of other interesting stuff) and comment here.
My surname is mis-spelt fairly often, reasonably enough in the case of people who’ve only heard it and have to guess at the unstressed vowel. But it happens surprisingly often when all that is needed is to transcribe the text in front of them.
Likewise, I occasionally get people addressing me as “Mr” because they feel the need for a title and choose the default.
Neither, by themselves guarantees hostility and stupidity. But in ten years of blogging, I’ve never seen an exception to the rule that together, they imply exactly that.
Is this just me? Do other bloggers and commenters find that particular forms of address predict the content of comments? And, if so, which ones?
For anyone who is really worried about how to refer to me, I’m happy with JQ, John (or John Q for clarity), Quiggin (in the third person), and Prof Q (to my friends).
A couple weeks back the estate of Jack Kirby reached a settlement with Marvel, the day before the Supremes were set to take the case. This was a surprise, as the Kirbys were 0-2 in the courts, to that point. I hadn’t paid attention but I figured their case was weak, although they had my sympathy. I had read stuff like this from early NY Times articles:
WHEN the Walt Disney Company agreed in August to pay $4 billion to acquire Marvel Entertainment, the comic book publisher and movie studio, it snared a company with a library that includes some of the world’s best-known superheroes, including Spider-Man, the X-Men, the Incredible Hulk and the Fantastic Four.
The heirs of Jack Kirby, the legendary artist who co-created numerous Marvel mainstays, were also intrigued by the deal. Mr. Kirby’s children had long harbored resentments about Marvel, believing they had been denied a share of the lush profits rolling out of the company’s superheroes franchises.
Marvel made out like bandits, treating Kirby badly. But that’s not a legal argument.
What made Marvel blink at the last minute? The terms of the settlement can’t be revealed, so it’s hard to say.
I kind of hoped Marvel/Disney had actually decided to do the right thing, if only as a result of some bad press they’ve gotten in recent years about their treatment of Kirby. Wouldn’t that have been something? A corporate person with a conscience?
Assuming Busiek has got it straight, and I haven’t seen anyone argue otherwise, all the stuff I read that made it sound like the Kirbys were basically shooting the moon was totally off. (If you’ve got a one-in-a-million shot at billions, why not take it? Especially if Marvel/Disney might pay you to shoo.)
The case comes down a clause in the copyright extension Congress passed in the 70’s. Basically, if Kirby was working as an independent contractor in the late 50’s and early 60’s, his estate should be able to – and has applied to – revert copyright. On the other hand, if he was a proper employee, then it was work-for-hire, and that won’t work. Thing is: it kind of looks like Kirby was an independent contractor. His side can provide a lot of evidence: he worked from home for piecework pay, bought his own supplies, didn’t get health insurance, didn’t have taxes withheld by Marvel. He didn’t get paid for work Marvel didn’t like, and they didn’t object when he shopped that stuff to DC instead. Marvel had to fall back on arguments like: Stan Lee is pretty sure he remembers Kirby got paid for everything, although there’s no paperwork to back that. That’s kind of weak. From the appeals court decision: “the record suggests that Kirby and Marvel were closely affiliated during the relevant time period. Lee assigned Kirby, whom he considered his best artist, a steady stream of work during that period. … And Kirby seems to have done most of his work with Marvel projects in mind.”
Even if true, that’s not really sufficient to establish that Kirby creations were work-for-hire, under the law. It would seem rather reasonable to grant Marvel copyright over specific existing works – specific issues of the Fantastic Four, say, which Kirby was instructed by Lee to write and draw (the good old Marvel Method). But not reasonable to grant Marvel copyright over the characters themselves. Lee never told Kirby to go think up the Fantastic Four. Rather, Kirby – an independent contractor, not an employee – thought up characters and pitched them.
Amicus briefs were filed on behalf of the Kirbys by various parties who apparently didn’t want the Supreme Court saying the kind of work Kirby did was the kind of work Marvel has to insist it was. Apparently this group includes one of the original drafters of the 1978 copyright extension.
Unless I’m missing something here, what’s shocking is not that Marvel settled but that they didn’t settle earlier, since the Kirbys had a strong case.
Anyway, file this as yet another piece of evidence that copyright extension is all messed up. But this time the good guys won one.
If only there were some similar procedure by which the public could complain that we had a deal – protection of copyright in exchange for limited terms – and copyright extension breaks it. So we ought to get something back! And a pony, while you’re at it.
Since I blogged about Arendt and Eichmann on Erev Rosh Hashanah, I figured I’d do the same on Erev Yom Kippur.
Actually, there’s a reason I’ve been thinking about the Arendt/Eichmann controversy of late: it’s heating up again. This time, prompted by the publication in English of Bettina Stangneth’s Eichmann Before Jerusalem. I’ve been reading the book, which offers a full-scale reconsideration not only of Eichmann but of how Eichmann presented himself at court in Jerusalem. In the background, inevitably, is Arendt’s Eichmann in Jerusalem.
Stagneth’s is an uneven book, which starts out with great promise (its opening set piece is almost worthy of Arendt), but performs the nearly magical feat of being both tendentious, maniacally repeating its argument over and over again, and wayward; it’s both polemical and dilatory.
One potentially fascinating angle of the book, which I haven’t seen Stangneth develop, at least not yet, is why Arendt wasn’t more interested in Eichmann’s performance at Jerusalem as a performance. Arendt, after all, had an especially theatrical conception of politics, understanding all that we do in the public sphere as a kind of performance, a mask we wear, a role we inhabit. And no one reading those opening pages of Eichmann in Jerusalem could fail to see just how theatrical is her sense of the “show trial” in Jerusalem. And yet Arendt refuses to apply those insights to Eichmann himself. Rather than see him as performing a part (Stangneth does a good job of showing that that is exactly what Eichmann was doing at Jerusalem), Arendt sees Eichmann as being subsumed by, or subsuming himself in, his role. That is, in part, his blankness, his banality, for Arendt. It’s understandable that Arendt would resist seeing Eichmann in Jerusalem as a performance: that is, after all, the point of her book. Even so, it’s a fascinating wrinkle in the story, one that I hope Stangneth will pursue at some point in the book.
Back to the Arendt/Eichmann wars. They seem to flare up every decade or so. What’s truly astonishing is that the wars continue today, more than a half-century after the publication of Eichmann in Jerusalem. With the exception of Darwin’s On the Origin of the Species, what book has managed, 50 years later, to stir up so much wrath and rage? With books like the Bible or Capital, it’s more understandable: they, after all, are immediately linked to a political or religious movement. But Eichmann in Jerusalem is not.
Or perhaps it is…
In the beginning, when the battle first broke out after the publication of Eichmann, the main issue of contention was Arendt’s treatment of the Jewish Councils. But now that most of that generation of survivors is gone, that issue has died down.
Now the main fault line of the battle is Arendt’s treatment of Eichmann’s anti-Semitism: whether she minimized it or not. And that issue, it seems to me, is very much tied up with the fate of Israel.
After all, if the claim could be made, however vulgarly (for this was not in fact Arendt’s point at all), that Ground Zero of modern anti-Semitism was not in fact anti-Semitic, what does that tell us about the presence and persistence of anti-Semitism in the contemporary world? Again, that was not in fact Arendt’s argument, but it’s been taken that way, and I can’t help but think that one of the reasons why the focus on Eichmann’s anti-Semitism plays the role now that it does (as opposed to when the book was originally published) has something to do with the legitimation crisis that Israel is currently undergoing.
But this is for a longer discussion at a later point, one that I plan to explore in more depth in a piece on the Arendt wars that I’ll be writing for a magazine.
Right now, I’m more interested in the battle between Seyla Benhabib and Richard Wolin that has broken out over the last few weeks in the pages of the New York Times and the Jewish Review of Books. Again, prompted by Stangneth’s book.
I’ve been hesitant to weigh into this battle on this blog for a few reasons. First, I personally know both Seyla and Richard, who’s a colleague of mine at the CUNY Graduate Center. Though I tend to side with Seyla on the question of Arendt, I have a great deal of respect for Richard and his work. I like both of them, and don’t like getting into the middle of it. Second, as I said, I’ll be writing more on the Arendt wars in the future, and want to give myself some time and space to think about what they mean before I weigh in in public. And last, I don’t know that I have the stomach for the inevitable round of Seinsplaining I anticipate on the comment thread of this blog. Talk about Arendt, everyone thinks Heidegger, and lo and behold we have one after another thousand-word comment from Learned Men about matters that have little to do with the original post.
But there are two smaller issues that have come up in the exchange between Wolin and Benhabib that I did want to explore, in part because they are so small.
The first has to do with the presence of Kant in Eichmann in Jerusalem.
In his critique of Benhabib’s Times piece, Wolin writes:
Benhabib’s claim that Kant’s moral philosophy plays a systematic role in Eichmann in Jerusalem is similarly unsustainable. Arendt’s reliance on Kant’s theory of judgment—the idea that we broaden our mental horizons by virtue of our ability to reason from the standpoint of other persons—is limited to one meager passage (Eichmann in Jerusalem, p. 48). Moreover, in the passage in question, Kant’s name is not even mentioned. Casual allusions along these lines hardly qualify as systematic or serious employment. As most Arendt scholars are aware, Arendt only developed these Kantian precepts in earnest circa 1970, in the course of her Lectures on Kant’s Political Philosophy and in the complementary essay “Thinking and Moral Considerations.”
The question of Kant’s presence in Eichmann has a lot to do with how we understand Arendt’s treatment of what she calls Eichmann’s thoughtlessness. When Arendt accuses Eichmann of thoughtlessness, she means, for those who favor a Kantian reading (at least an Arendtian reading of a Kantian reading of Arendt: are you still with me?), that Eichmann was simply unable to think about what he was doing from the standpoint of other men and women, how his actions might be perceived by someone who was not in his shoes.
Stangneth, in fact, tells a story about Eichmann that offers a perfect illustration of this reading of thoughtlessness (though Stangneth interprets the story completely differently): In 1950, Eichmann, along with 15 others, managed to flee Europe and set sail for Argentina from Genoa on the Giovanna C. Years later, in a text titled “Meine Flucht,” he reminisced about the relief he felt, finally to have escaped his would-be tormentors. Drawing a parallel only he could have drawn, he marveled, “Once it was the Jews, now it was–Eichmann.” This is the sort of thing Arendt had in mind when she talked about Eichmann’s thoughtlessness.
Back to Wolin. That last claim of his, which I’ve bolded above—”As most Arendt scholars are aware, Arendt only developed these Kantian precepts in earnest circa 1970, in the course of her Lectures on Kant’s Political Philosophy and in the complementary essay ‘Thinking and Moral Considerations’”—is simply not true.
In a brilliant article—”Arendt, Aesthetics, and ‘The Crisis in Culture‘”—that totally changed how I see some of Arendt’s work, University of Chicago political theorist Patchen Markell shows that the Kantian presence in Arendt’s thought, particularly regarding these issues of judgment and enlarged mentality, well predates her 1970 writings, extending as far back as the 1950s. In other words, while it’s no surprise that Arendt had read Kant and was obsessed with him throughout her writing (what German émigré scholar of her generation wouldn’t have been?), the particular question of Kant’s influence on her theory of judgment, and how judgment relates to questions of aesthetic taste, which was a major topic in her writings in the 1970s, can be shown to be present throughout her writings in the 1950s. And in fact, as Patchen shows, most serious Arendt scholars know that.
If memory serves (I only read this essay in draft more than a year ago), Patchen looks at Arendt’s essay “The Crisis in Culture,” which was being written and formulated in the late 1950s and which finally appears in Between Past and Future in 1961 (the year Eichmann went on trial). He shows, among a great many other things, that Arendt and Jaspers were corresponding about Kant’s Critique of Judgment in the late 1950s (so the text was on her mind), and that the Critique of Judgment very much informs her essay on culture, and how to think about questions of taste and judgment and their relationship to politics. In other words, whether or not Kant is present in what Arendt wrote in Eichmann in Jerusalem (and I think Seyla’s got the better of that argument), Kant, and his writing about judgment, were clearly present in Arendt’s thinking on the eve of her travels to Jerusalem.
As Patchen further commented to me on my blog:
Although the Jaspers correspondence does contain a letter from 1957, when she was busy re-reading the Critique of Judgment, that makes it pretty clear how seriously engaged she was with that text, the place to go to really see this is her Denktagebuch or notebooks, published in 2002, which contain 15 pages (in the published version) of handwritten notes from the third Critique, including notes and comments on the idea of an “enlarged mentality,” the importance of the presence of others for the validity of judgments, etc. The editors of the Denktagebuch themselves observed how significant it was that this material came prior to, not after, the Eichmann trial. The Anglophone scholar who reconstructs this stuff best, and really focuses in a way I do not on the continuities between the Kant reading of 1957 and the lectures of 1970, is David Marshall, who published a very detailed piece on this history of Arendt’s readings of Kant in Political Theory (2010): http://ptx.sagepub.com/content/38/3/367.
Inspired by Wolin’s piece (and Patchen’s corrective, avant la lettre), I read Arendt’s other essay from that period, “Culture and Politics.” This was a talk she gave in Germany in 1958, which was published in German in 1959, and was then incorporated into the final version of the “The Crisis in Culture” essay that was published in Between Past and Future. It’s recently been translated into English.
In that essay, Arendt claims Kant’s Critique of Judgment as an explicit inspiration for her thinking about judgment and politics: the Critique, she says, “ contains what is in my opinion the greatest and most original aspect of Kant’s political philosophy.” That was just two years before Arendt would head to Jerusalem to report on the Eichmann trial.
As she goes on to develop the political implications of Kant’s theory of taste and judgment, Arendt writes:
It is as though taste decided not only what the world should look like, but also who belongs together in the world….The belonging-together-of-persons—this is what gets decided in judgments about a common world. And what the individual manifests in its judgments is a singular “being-thus-and-not-otherwise”….
As soon as I read that “who belongs together in the world,” I stopped. The passage has an eerie resonance.
In the epilogue to her report on the Eichmann trial, Arendt delivers what she thinks should have been the Israeli court’s judgment against Eichmann. Her very last two sentences read:
And just as you [Eichmann] supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations…we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.
Though I have no idea if Arendt intended these last sentences of Eichmann to be read as such, it’s hard for me not to read them as an indication of how, for Arendt, Eichmann’s crimes are a terrible and ironic perversion of the Kantian themes she was developing in her 1959 essay.
Just as a person reveals herself in her tastes (and what she reveals in part is “who belongs together in the world”), so does Eichmann reveal himself in his tastes (or lack thereof), and what he reveals is who belongs together, in his mind, in the world: Aryans as opposed to Jews. So does he also reveal, inadvertently, who actually belongs together in the world: Eichmann and all the other Nazis who refused to share the earth, as opposed to the peoples of the earth.
It is because of that terrible and ironic perversion of Kant’s theory of taste, which is connected to judgment, that Arendt insists so strongly on the court restoring the proper meaning of Kant’s theory of taste/judgment in its verdict on Eichmann: through its verdict, Arendt claims, through its revealing who or what it is, the court must decide who does indeed belong together in the world—namely, the peoples of the earth, in all their plurality—and who does not: those individuals, like Eichmann, who do not wish to share the earth with others.
Okay, so that’s the first small item in the Arendt Wars that I want to talk about.
The second one has to do this with this claim of Wolin’s:
Second, a perusal of Arendt’s correspondence indicates that so great was her impatience with the proceedings that she never saw Eichmann testify. Arendt endured chief prosecutor Gideon Hausner’s lengthy opening statement and, following an absence of several weeks, returned to Jerusalem to witness the final verdict. But, remarkably, she never saw Eichmann himself take the stand. (Here, one suspects that Arendt’s rather brazen disregard for the value of testimony, not to speak of the norms of journalism, is an instance of Germanic philosophical arrogance. As J. G. Fichte said, if the facts fail to accord with the sublimity of the idea, so much the worse for the facts!)
Two nights ago, I spent the better part of the evening re-reading Arendt’s letters to her three main correspondents during the Eichmann trial—the philosopher Karl Jaspers, her husband Heinrich Blücher, and her friend Mary McCarthy. The following morning, I did my best to work through some of the secondary literature on the trial and the Arendt controversy.
Based on this research, I think I can safely say that Wolin is incorrect. Not only was Arendt present for Eichmann’s testimony, but she also took his testimony incredibly seriously. What’s more, the very correspondence Wolin cites as the basis for his conclusions demonstrates the exact opposite of those conclusions.
It helps first to remember three key dates from the Eichmann trial:
December 11, 1961: the Israeli court issues its verdict
Right off the bat, it’s clear that Wolin’s chronology is off: Arendt could not have been in Jerusalem for the prosecutor’s opening statement only, left for a few weeks, and then returned for the verdict. Roughly eight months separate the first day of the trial from the announcement of the verdict.
And indeed, when the verdict was issued in December, Arendt was either in New York, nursing Blücher back to health (he had suffered from a ruptured aneurism), or in Middletown, Connecticut, where she would have been wrapping up a seminar on Machiavelli she had been teaching at Wesleyan that fall. The one place she would not have been was in Jerusalem, as is clear from a letter she wrote to Jaspers on December 30, 1961, and from Elisabeth Young-Bruehl’s biography.
But Wolin has got more than the dates of the trial and Arendt’s attendance wrong. He also gets wrong what Arendt saw and heard at the trial and her attitude to the trial and its testimony more generally. Most important, the centrally damning claim he makes—that Arendt never saw or heard Eichmann testify—is also wrong.
Arendt arrived in Tel Aviv on Sunday April 9, 1961, two days before the trial began, and headed straight for Jerusalem. At the trial, she listened intently not only to Hausner’s opening statement, but also to lengthy recordings of Eichmann’s depositions. As she wrote to Blücher on April 20:
Here everything is going as expected…with the ghost in the glass cage listening to his voice sounding from the magnetic tape.
Arendt also heard testimony from a great variety of witnesses for the prosecution, including one of the leaders of the Warsaw Uprising; the father of Herschel Grynszpan, whose assassination of Ernst vom Rath had provided the pretext for Kristallnacht, and whose testimony she discusses in Eichmann; and Salo Baron, the eminent Jewish historian.
In fact, as the days went on, Arendt grew increasingly frustrated by this testimony, as so little of it had to do with Eichmann himself. As she wrote to Blücher on May 6:
The basic mistake—if one can say such a thing—is not only that Eichmann has been completely forgotten, his name often not mentioned for days on end (really typical, e.g.,: After the prosecution put 29 volumes [!] concerning Hans Frank on the table, Servatius [me: Eichmann’s attorney] rose and asked: “Does the name Eichmann appear in any of these volumes!” The answer: “No”)…
Far from being uninterested in what Eichmann had to say, Arendt was profoundly interested in him and his testimony. She watched him closely throughout the trial: “Eichmann is no eagle; rather, a ghost who has a cold on top of that,” as she wrote to Jaspers on April 13. And throughout her stay in Jerusalem and in the time after that, she kept recurring to the six volumes of testimony (more than 3000 pages) Eichmann had given in his depositions. Not to mention the lengthy trial transcript she pored over for months as she prepared her articles for The New Yorker.
Then, on May 6, she writes to Blücher that she is leaving Jerusalem the next morning for Switzerland, where she will visit Jaspers. As she’s about to leave, she wonders:
The question is: Should I come back here again for the defense? I imagine I should, but I’m not sure….Of course it also depends on my appointments. Zurich on June 24th—etched in stone!
That date, the 24th of June, was a reference to a long-planned reunion between her and Blücher, who would be meeting Jaspers and his wife, both of whom had played such an important role in Arendt’s life, for the very first time.
As the weeks go by, first in Switzerland with Jaspers, and then in Germany, Arendt decides she must return to Jerusalem. The only question is when. “If I only knew when I have to go back to Jerusalem,” she writes McCarthy on May 31.
Why was Arendt so eager to return to Jerusalem? Simply and solely to see and hear Eichmann testify. And what was the referent for “if I only knew when”? It seems from the context of her letters that she needed to know the date that Eichmann was to assume the witness stand in order to properly plan the timing of her return.
Contrary to what Wolin explicitly states and implicitly suggests in his piece, seeing and hearing Eichmann testify was a top priority for Arendt between the time of her first visit to Jerusalem and the time of her return there.
On June 4, Arendt tells Blücher that she thinks she’ll be in Jerusalem by the 17th. And adds, “With a bit of luck, it might happen in the week of June 17 that Eichmann will be called to the witness stand.”
On June 14, a Wednesday, she writes Blücher:
So I’m flying to Israel on Saturday, as I already wrote you. The trial will start again on the 20th, and I’m afraid that Hausner will try to delay matters even further. But I have at least to try to see Eichmann on the witness stand>….I will leave there on Friday the 23rd, either directly for Zurich, or via Athens—it all depends.
So, that’s all. Here’s my address again, just to be sure: Hotel Eden, Jerusalem till Friday the 23rd. After that, with you: Waldhaus Dolderer, Zurich.
And then, on June 16, a Friday, she writes Jaspers: “I’m off tomorrow morning.”
Unfortunately, the three editions of her correspondence do not include any letters from this second visit to Jerusalem. Presumably because she was only there for a very short while and because she knew she was going to be seeing Jaspers and Blücher, the two people she corresponded with most intently during that time, within days.
What we do know is that Eichmann did indeed take the stand on the 20th of June, and unless Arendt canceled her trip to Jerusalem at literally the last minute (“I’m off tomorrow morning”), we also know that she was in the city when he took the stand. It would seem strange if, after all these expressions of desire to see Eichmann in court, she decided not to stop by.
Now the question is: Where might Wolin have gotten the notion that Arendt didn’t in fact see, or care much about seeing, Eichmann testify? He refers to “a perusal of Arendt’s correspondence,” but as I’ve shown, nothing in the correspondence indicates that she didn’t see (or didn’t care about seeing) Eichmann testify, and in fact, everything in the correspondence points in the opposite direction.
Several folks initially suggested to me that perhaps Wolin got it from Deborah Lipstadt’s The Eichmann Trial, which came out a few years ago. I don’t have the book nor have I read it. But with the help of Amazon and Google Reader, I’ve been able to find the crucial passages on pp. 178-180. Long story short, Lipstadt confirms what I’ve written above and thus could not have provided Wolin with his source.
First, Lipstadt says that after her first stint in Jerusalem, Arendt traveled to Basel for five weeks (actually, she was also in Germany). She then, says Lipstadt, returned to Jerusalem to see Eichmann on the witness stand. In the courtroom, Arendt saw and heard Servatius, Eichmann’s attorney, ask him questions.
Second, Lipstadt does criticize Arendt for not staying to witness Hausner’s cross-examination of Eichmann. Had she stayed, says Lipstadt, Arendt might have seen something about Eichmann, under Hausner’s withering critique, that she could not have gleaned from the transcript.
Third, Lipstadt is very careful to point out that simply because Arendt wasn’t there for part of the trial does not invalidate her conclusions; a great many accounts of trials, Lipstadt says, are based entirely on a reading of the transcript.
So, bottom line: Lipstadt does not provide any evidence for Wolin’s claim.
Lipstadt’s footnotes to this discussion, however, provide us with a potential lead. Most of Lipstadt’s footnotes refer to Arendt’s correspondence with Jaspers and McCarthy. Again, nothing in that correspondence supports Wolin’s claim. But Lipstadt also refers in her footnotes to p. 148 of Raul Hilberg’s memoir. Hilberg was a historian of the Holocaust. Indeed, he wrote the first genuinely comprehensive history of the Holocaust, from which Arendt drew extensively in her book. Much to Hilberg’s chagrin: he felt like he never got the proper acknowledgment from her or from subsequent scholars of the controversy.
On p. 148 of his memoir, Hilberg claims that Arendt stayed in Jerusalem for ten weeks and then left three days before Eichmann assumed the stand. He also claims that Arendt’s published correspondence with Jaspers shows this. So Hilberg might in fact be Wolin’s source, though I took Wolin’s “a perusal of Arendt’s correspondence” to mean that Wolin had done the perusing. In any event, Hilberg is wrong on all accounts: Arendt did not stay in Jerusalem for ten weeks; she did not leave three days before Eichmann assumed the stand; and her correspondence with Jaspers does not show any of this.
You might wonder why I’ve spent so much time examining this kind of minutia. I’ve wondered the same thing myself. I suppose it comes down to the ethics of literary controversy, a sense of how, if we’re going to argue over this book, we ought to argue over it. (That’s an issue, if I’m being honest with myself, that I have a particular investment in, given my own experiences with some of my writing.)
Since its publication, Eichmann in Jerusalem has generated not only a good deal of justified controversy, but also a good deal of unjustified controversy, a lot of it based on misinformation. As Amos Elon commented in his introduction to a reissued edition of Eichmann: “Hand-me-downs from one critic to another drew on alleged references in the book which no one seemed to have checked.” It’s in the interest of preventing another generation of hand-me-down allegations that I write this post.
Have an easy fast.
See: Survive and Thrive Journal of Medical Humanities and Narrative as Medicine
Survive & Thrive: A Journal for Medical Humanities and Narrative as Medicine is dedicated to improving the odds of survival and living well through education. We are committed to engendering and facilitating restorative therapies for the sick and injured, their caretakers, families, and medical professionals. We welcome all who are dedicated to saving lives and the aesthetic experience in healing regardless of the kind of illness or injury.
Date: Wed, 1 Oct 2014 22:30:08 -0400
Dear Coalition Members,
As some of you know, I am making a documentary about the Coalition's
The Law, in its Majesty, Allows Rich and Poor Alike to Keep Their Private Jets While Waiting to Declare Bankruptcy
This, from Ars Technica, is pretty extraordinary:In the early 2000s, William “Trip” Hawkins—founder of video game publisher Electronic Arts—was living the good life. … Hawkins had a peculiar way of keeping his cash flow up; he wasn’t paying all the taxes connected to the proceeds of some of his stock sales. Instead, he participated in a tax sheltering setup designed to produce on-paper “monetary losses” to offset the gains. The scheme was all done through accounting firm KPMG, which used convoluted Swiss and Cayman Islands deals that eventually raised the eyebrows of Internal Revenue Service (IRS) tax auditors. The IRS and the California Franchise Tax Board eventually cried foul. In 2002, the IRS notified Hawkins’ lawyers that the tax shelters, accounting for about $60 million in claimed losses, wouldn’t be allowed for the tax years 1997 to 2000. This meant that Hawkins would be on the hook for millions in back taxes on all those EA stock profits. Still, Hawkins continued living a jet setter’s life until around the time he filed for bankruptcy protection in 2006. For instance, a government legal filing said that Hawkins’ private jet had cost $11.8 million in 2000 and had an “operating” cost of $1 million annually. Hawkins did eventually pay more than $10 million toward his tax debt, but $26 million still remained. Because of Hawkins’ continued high spending, a federal bankruptcy court refused to give him the usual bankruptcy benefit of wiping his tax burden. … But Hawkins appealed this ruling—and he doesn’t have to pay those taxes, at least not for now. A recent decision by a three-judge panel for the 9th US Circuit Court of Appeals in San Francisco sided 2-1 with Hawkins despite objections from a dissenting appellate judge who said that Hawkins didn’t deserve a break because he was engaged in “profligate spending.” The appeals court concluded that it didn’t matter whether Hawkins bought a private jet or lived the high life, so long as he wasn’t willfully scheming to evade his tax burden. The majority opinion concluded that the law was on Hawkins’ side and that “bankruptcy law must apply equally to rich and poor alike.”
The key quote from the majority’s ruling is below:[A] mere showing of spending in excess of income is not sufficient to establish the required intent to evade tax; the government must establish that the debtor took the action with the specific intent of evading taxes. Indeed, if simply living beyond one’s means, or paying bills to other creditors prior to bankruptcy, were sufficient to establish a willful attempt to evade taxes, there would be few personal bankruptcies in which taxes would be dischargeable. Such a rule could create a large ripple effect throughout the bankruptcy system. As to discharge of debts, bankruptcy law must apply equally to the rich and poor alike, fulfilling the Constitution’s requirement that Congress establish “uniform laws on the subject of bankruptcies throughout the United States.”
On the one hand, there might in principle be a sort of logic to this. US bankruptcy law has been revised to the great benefit of creditors in recent years. Stripping away another set of protection for debtors could be problematic, given that most debtors in need of protection are not Trip Hawkins. You could read the first part of the argument as referring to this possibility. On the other hand, the second part of the judges’ decision seems to be guided by exactly the opposite fear. They seem, very literally to be arguing that the laws which protect poor people from adverse judgments that they are spending above their income, should also give carte blanche to a rich dude with creative accountants and a massive tax judgment hanging over his head to keep his jet, his Giants season tickets etc without any adverse implications being drawn about his willingness to settle his tax affairs. And they made this judgment despite (as a dissenting judgment points out) the fact that Hawkins’ tax attorney “testified that Hawkins’ intent was not to pay the tax debt, but to discharge it in bankruptcy.” I don’t imagine that the judges realize that they are unconsciously recapitulating Anatole France, with the satiric effect surgically removed. But the incentive effects on rich people in temporary financial difficulties will be interesting, if the judgment stands.
[Title stolen from David Moles, with a small modification]
When I was sixteen and seventeen I did my 5th Year of secondary school twice. Amidst grinds, tears and two to three hours of Honours Maths homework each night, I just could not make it past Christmas and still understand what was going on. (The obvious and practical response; take Ordinary Level Maths instead and accept that a career in Medicine was out, just didn’t seem to present itself.) For two years I hungrily repeated the exercises in the small part of the curriculum I understood, and threw myself with increasing desperation and diminishing returns at the rest. The last chapter I remember mastering was called something like ‘Sequences, Series and the Binomial Theorem’.
Happily, understanding – at least a little – the concept of geometric progressions has turned out to be one of the most useful and widely applicable bits of Maths I could have picked up. It crops up everywhere; understanding the spread and gravity of DDOS attacks, why mouse infestations need to be hit early, why skimming stones on water is so hard, and how a young woman settling for less money than a man at the beginning of her career may still be paying for it when she’s middle-aged.
The definition of a geometric series or progression is ‘whenever a term of a sequence is a constant multiple of the preceding term’. When that multiple is greater than one, the numbers will get very big, very fast. If, for example, the multiple is two, you’ve got ‘exponential growth’, a mathematical term of art that’s often used inaccurately elsewhere to describe rapid but not geometric increases. Real exponential growth tends to sound pretty grim when the term is correctly applied in epidemiology.
At dinner the other night, I learnt that the rate of increase of cases of Ebola in certain African countries has been modeled as a geometric progression for weeks, if not months.* Since at least August, the number of new Ebola infections has started to double every month. Common sense dictates that the more people infected, the more people who will be infected. Mathematics predicts chillingly just how bad it will be. The battle to stop the spread of this disease reaching the threshold where it is now running like wildfire has already been lost.
How did it get so bad, so fast? We already know the answer – failed states with no capacity to look after their people at the best of times fell totally apart in a crisis. Over the past two years, the Liberian government disbursed about 5% of the aid it received from the EU that should have gone into building a decent health system. People who might or might not be infected resisted government attempts to round them up and put them in hospitals that more accurately resembled enforced quarantine zones with little or no treatment.
In Sierra Leone, where the UK cut its direct aid budget by 20% two years ago, reported Ebola cases are doubling every three weeks. NGOs there believe a far greater number of people are dying of the disease unreported and at home. There are just over three hundred hospital beds for Ebola in the country. It is a complete disaster and as our mathematics tell us, it will only get worse.
Something must be done, but what? A donors’ conference is happening in London today, where developed countries will pledge more money, divvy up responsibilities, and try to figure out how to channel emergency assistance through or past state channels.
Already, soldiers from the US, UK and France are in affected countries – numerically dwarfing the build-up in Syria / Iraq. (Parse that, for a moment. See where the biggest actual threat seems to be.) The US military is focused on Liberia, the UK on Sierra Leone, and France on Guinea.
And these are not small numbers of troops. The Americans have sent the bones of a brigade to Liberia, where they are building multiple 100-bed military hospitals. The UK is aiming to build a 700-bed hospital in Sierra Leone. The military is used to building instant infrastructure in impossible environments, but will it be enough?
The new Sierra Leone hospital will need hire and train for the special conditions about 7000 personnel, most of them nurses. Where will they come from? A mix of local and international, probably, but that’s a lot harder to put together than it sounds.
What about the soldiers themselves? It sounds very prime-ministerial to ‘send in the army’ to fill and deploy sandbags against the UK’s seasonal floods, to save the day when G4S has cocked up tending Olympics security lines, to be on six-hour standby when Hackney and Peckham are engulfed in riots. But the boots on the ground belong to real people, with real families.
A practicality; UK soldiers deploying abroad usually insure their lives and incomes under private sector schemes like Pax. (Because no, an army pension is not typically enough for a surviving family to live on, and yes, your average critical and life insurer doesn’t cover deployment to war zones.) Pax doesn’t cover Ebola and it’s not likely to either. It’s one thing deploying somewhere terrible when your family will be looked after in case of the worst, quite another when you’ve just voided your income protection along with your fatigues, and the people you love will be kicked off the patch six months after your ugly and lingering death.
Another practicality; it’s all very well to fly the odd Ebola-stricken aid worker back to the UK to be treated – though it presents a stark and nasty calculus of the respective values of African and European/American lives. But how will that work if we’re sending a dozen or two dozen sick and infections soldiers back every month to the UK’s precious few medical isolation units? As to the dead, the flower-lined streets and heroes’ laments of Royal Wooton Bassett will be a dim memory for those felled by a revolting disease spread partly through contaminated corpses.
Scale matters. A lot. It changes not just the scope but the type of problem we’re dealing with, and the proliferation of problems around that. An exponentially growing problem is a problem that metastasizes out of recognition every few months.
Of the three Jews described by George Steiner as, in Corey’s summary, having formulated a great and demanding ethics/politics, Jesus is to me the most interesting.1 That thought struck me while reading Jerry Cohen’s Self-ownership, freedom and equality, a Marxist response to Nozick. As Cohen observes early on, Marxists seem to have a lot more difficulty responding to Nozick than do (US) liberals or social democrats. That’s because the notion of self-ownership central to Nozick’s argument is closely allied to the Marxian idea that capitalism inherently involves exploitation (that is, extraction of surplus value from labor). Nozick’s claim was that the same is true of taxation, or any kind of claim on private property imposed by the state.
I’ll come back to self-ownership in a little while. The more interesting point, to me, is that Nozick’s argument was refuted in advance by Jesus when he was asked by Pharisees (arbiters of the law laid down by Moses) whether it was lawful for Jews to pay taxes to the Romans. This was, of course, a trap, since he could be arrested for saying No and discredited for saying Yes. Jesus showed them a coin with the emperor’s head on the obverse and said “Render unto Caesar the things that are Caesar’s; and unto God the things that are God’s”. And “when they had heard these words, they marvelled, and left him, and went their way.”
Jesus’ point is just as valid if the coin is replaced by paper currency bearing the picture of a president, or rent from a land title issued by a state, or a dividend coupon from a corporation established under state law. All of these things were initially obtained from states under conditions that (in most cases, explicitly) involved the obligation to pay taxes as determined by the legal processes of those states. Someone who takes Caesar’s coin and then repudiates the associated obligation to pay taxes is, quite simply, a thief (of course, theft implies property, and vice versa).
How does all this relate to self-ownership? In my view, this is nothing more than a linguistic confusion.2 Our relationship to our bodies and thoughts, to our friends and family, and even to the objects we use in our daily life, is fundamentally distinct from the property rights we may, or may not, derive from, and have enforced by, states. That’s true even though the same grammatical structures (genitives and clitics) are used for both. This is most obvious from the fact that most (if not all) actually existing property rights in the world today can be traced back to systems which encompassed some form of slavery.
Moreover, systems of property that do recognise self-ownership must necessarily allow some form of slavery. Ownership implies alienability, so that freemen can sell themselves and their families3 into slavery, peonage or indentured servitude.
This brings us to the idea, shared by Marx and Calhoun (among many others) that wage employment is inherently a form of slavery. This conclusion, I think, reflects the fact that self-ownership is the wrong starting point for thinking about these issues.
The fact that most employment relationships involve some degree of exploitation of the worker by the employer reflects the fact that employers are mostly richer and more powerful than workers. A change in the formal relationship, doesn’t change the facts and is often associated withintensified exploitation. An example is the conversion of workers into nominally independent contractors, often used in Australia as a method of unionbusting.
To sum up, the whole idea of basing a theory of social justice on self-ownership, or any kind of natural right to property derived from self-ownership, is inherently self-contradictory. State-created and enforced property rights, including the associated taxation systems, are social institutions which may or may not contribute to socially just outcomes, but have no moral standing in themselves.
But even if a system of this kind established gender equity and notionally gave everyone self-ownership, it would not change the dependence of children on their parents or other adults. So, by the time children reached adulthood, they could be burdened with unrepayable debts, as typically happens in systems of debt peonage.
It’s a midterm election and the airwaves are filled with nasty attack ads. Aren’t they a blot on our politics? John G. Geer takes a contrarian view in our free e-book for October, In Defense of Negativity: Attack Ads in Presidential Campaigns .
I hesitate to post this little item because it involves praise of me (with a term, as you may recall, that I really don’t like), but…John’s complaining that we’re not posting enough, and I think the topic in this item might be of interest to readers.
The context is that my friend, Peter von Ziegesar, who’s a filmmaker and author (of an affecting memoir about his brother that you really should read), was interviewed by PEN America and was asked, “While the notion of the public intellectual has fallen out of fashion, do you believe writers have a collective purpose? How about artists? Is it a shared purpose?”
In his response, Peter says in part: