"HONOR BOUND TO DEFEND FREEDOM" : WHAT ARE WE STILL DOING IN IRAQ?

AN ESSAY

Two weeks ago, I watched Paul Greengrass' searing Green Zone. Although the movie masquerades as a pure action thriller, it actually deeply criticizes American involvement in Iraq, especially the manufactured casus belli that led us to war. At several points during the movie,my emotions surged. I have always spoken out against the War in Iraq. I always considered it an illegitimate, illegal, unethical, imperialist venture without justification in law, justice or good policy. The movie showed raw American power at work. And that reawakened my slumbering vitriol about the war.

Green Zone opens in the din of an air raid. It is March 19, 2003, the day the U.S. air force began bombing Baghdad. Sirens wail. We hear the buildings shudder as explosions rip through the city. Iraqi men and women frantically run through hallways, shouting and screaming. We see lights flickering. Dust falls from ceilings. Windows break. Then the shot pans out to a vista over the city. Massive fireballs light up the night. Buildings burn. Anti-aircraft fire streaks into the sky. Jet engines and cruise missiles boom through the air before yet another explosion rips the skyline.

That scene choked me up. So that's American power, isn't it: The power to bomb a city into oblivion. The power to make civilians scramble in panic as the house next door explodes into a million pieces. The power to knock out electricity and destroy infrastructure. And for what? In hindsight, I knew there was no justification for the war. There were never any weapons of mass destruction. Iraq did not plan 9/11, nor did any Iraqis hijack the planes that attacked the United States. No, America flexed its muscles against Iraq simply because it could. It ignored the United Nations and its weapons inspectors. It acted with breathtaking defiance, even if it mumbled about "reliable independent intelligence" concerning an Iraqi nuclear arms program.

Worse, we're still there, seven years and 6000 American dead later. That's to say nothing about the hundreds of thousands of Iraqis killed and countless more lives ruined for nothing.

War apologists will inevitably label be a socialist for making these observations. They will tell me that "intelligence was uncertain" about weapons of mass destruction in Iraq in early 2003, so it was better to be "safe than sorry." They will also tell me that America had "good reason" to attack Iraq because Saddam Hussein was a brutal tyrant who tortured and murdered his own people. In fact, they will stress the fact that America "fights for freedom" around the world; even if we did not find nuclear weapons in Iraq, at least we gave Iraqis democracy.

I recoil from this facetious "freedom" explanation for the invasion. The argument is not just illogical; it also shows American involvement in Iraq for what it really is: A selective, hypocritical, arbitrary application of brute force. It is illogical because America does not really care about "worldwide freedom." In the first place, it is presumptuous to even suggest that "American-style freedom" can work in diverse cultures around the world. And even if such a thing as "freedom" were universal, why stop with Iraq? George W. Bush said that the war was necessary because "Iraqis needed freedom from a murderous tyrant who tortured and gassed his own people." Yet there are many nations across the globe that need the same treatment. The "freedom" rationale--if believed--would require U.S. military involvement in virtually every sub-Saharan African nation, as well as Saudi Arabia, several southeast Asian countries and even Russia. There are "tyrants" in all those nations who "murder their own people."

So why haven't we attacked all these other countries? If we truly care about "freedom," we should attack Rwanda, Uganda, the Congo, Pakistan and Malaysia. The fact that we haven't shows that our involvement in Iraq is purely selective. And because the freedom rationale is so weak, it begs the real question: Why Iraq? Only a naïve idiot could believe that America had a genuine interest in "Iraqis' freedom from tyranny." So what was the real reason?

For a long time, I thought that America invaded Iraq to gain access to its lucrative oil reserves. The cynic in me can never really suppress the thought. Yet after seven years of occupation, oil prices are no lower than they were in 2002. In fact, they have even spiked several times in the ensuing years. With oil men like Dick Cheney and George W. Bush in the White House, Iraq's oil must have been one reason why they decided to invade. In retrospect, it should have been an easy assignment: Knock out Saddam, capture the oil fields, set up some pipelines and start pumping.

But it did not work out that way. The war planners encountered a set of problems they did not anticipate: Sectarian strife. They must have underestimated how difficult it would be to occupy Iraq. They could not set up their pipelines or build their oil-carrying infrastructure because the Iraqis did not just roll over and allow the Americans to have their way with their country. They sabotaged roads, blew up tankers, ambushed convoys and beheaded "contractors." And because men like Donald Rumsfeld woefully miscalculated how much force would be needed to subdue Iraq, the U.S. military never had sufficient strength to pacify the countryside. Rumsfeld thought a "small, rapidly mobile force" with overwhelming air power could claim Iraq.

He was wrong. In the end, U.S. forces in Iraq wound up fighting a desperate "fire brigade" war in which they struggled to respond to local hotspots without bringing overall stability to the country. As a consequence, America could not realize its initial commercial war goal: Oil mercantilism.

Still, I am not writing today to summarize America's strategic failure in Iraq. Rather, I am writing to stress that America's failure was far larger than mere military stalemate. America sacrificed much more than young soldiers' blood to occupy Iraq. It also sacrificed its historically "moral high ground" in war by engaging in illegal, unethical behavior on an unprecedented scale. In the end, American occupiers showed themselves little better than the Baathist torturers they set out to depose in 2003.

Green Zone alludes to this. In brief, the movie follows an army officer (Matt Damon) assigned to locate nonexistent "weapons of mass destruction" at various sites throughout Baghdad. After coming up empty every time, he begins to wonder whether his intelligence is sound. He decides to investigate his sources and gradually uncovers a tangled web of official deceit running all the way down from the Pentagon. When he realizes that the Pentagon has basically misled the army into supporting the war, he sets out to locate an Iraqi general who met with a senior Pentagon official (Greg Kinnear) prior to the war. The general told the Pentagon official that Iraq had no WMD program. The Pentagon official lied about what the general said and told Washington that Iraq did have such a program. To prevent the truth from emerging, the Pentagon official sends a hit squad to kill the general. Meanwhile, the army officer rushes to save him and expose the truth.

Green Zone's plotline makes for a good thriller. But it also makes a valuable point: America's case for war against Iraq was marred from the outset. It was built upon official deception. It threw ethics to the wind and committed American blood for fabricated reasons. The movie shows the American government working in a criminally underhanded manner. It shows senior American officials manipulating the truth and authorizing murder to conceal it. While Green Zone might just be a movie, it is certainly based on real events.

I thought America was supposed to be better than this. What ever happened to America as the "White Knight" of international politics? There was a time when America went to war for good things--and only as a last resort. There was a time when people around the world looked to America as a beacon of freedom and justice. During that time, no one would have dared think America could be tyrannical or evil. America did not lie, cheat, deceive, torture, murder or kill. It punished those who did while remaining true to its ethical principles. Hitler tortured, killed and invaded. America liberated the death camps and freed Europe from Nazi domination. That was noble and just. That was America's international reputation. That America could never act a villain.

Sadly, America did act a villain in Iraq. In a telling scene, Green Zone reminds us that American forces committed atrocities against Iraqi prisoners. It shows us a "detainee camp" in which U.S. forces hold allegedly "high-value" Iraqis in a stockade. It shows U.S. troops brutalizing prisoners with clubs, barking dogs and extremely loud music. It shows them forcing prisoners to sit in uncomfortable positions. We hear prisoners crying out in pain from darkened solitary cells. Some even lie bleeding on the floor without medical care.

Ironically, a sign over the stockade reads: "Camp So-and-So : Honor-Bound to Defend Freedom."

What kind of freedom is this? What kind of honor? It is as if the American army in Iraq still believed that it was the "White Knight" of 1945, even though its "intelligence division" members acted more like SS torturers than noble liberators.

There is no honor in torture or inhumane treatment. America said it waged war in Iraq to overthrow tyranny and torture. Yet within weeks, it began committing the same outrages on Iraqi prisoners that Saddam committed against his own people. Of course, war apologists will say that troops in the field must discover valuable battlefield intelligence "by any means necessary." That may be so as a practical matter. But America used to draw ethical strength from its refusal to engage in the unsavory tactics of its enemies. America acquired a sterling reputation because it refused to be Machiavellian.

We have drifted far from our ethical moorings. The war in Iraq has cost this country more than individual soldiers. It has also cost us our international reputation. We are no longer noble liberators committed to justice. Rather, we are now petulant rogues who wage war simply because we want to, without regard to ethics or international law. Our involvement in Iraq is a very dark chapter in American history. It is the chapter in which America became just another Machiavellian State determined to do its will, no matter the cost in blood or principle.

I wonder whether we will ever repair the damage we have done to ourselves.

NATIONAL BROTHERHOOD OF NO-GOOD SCOUNDRELS, DISHONORABLE PRICKS, LOW-DOWN PUNKS AND PLAIN LOUSY SONOFABITCHES WHO NEVER CALL YOU BACK

POLITICAL PARTIES FOR A CHANGING WORLD

By : Dr. U. B. van Flucken, Ph. D., Yale University (Behavioral Science); Former Fashion and Women's Issues Editor, Men's Health Magazine (2003-2007); Fellow, The National Favorable Results Society (Washington, D.C. Chapter); Author, "Say What You Need To Say : A Beginner's Guide to Getting What You Want from People " (Doubleday Press : New York 1999); Semi-Professional Water Polo Competitor (Greater Northeast Elite Sports Network) (1989-present).

No matter where you turn in this country, people tell you that it is bad to be a scoundrel. They say that it is wrong to lie, exaggerate, deceive, betray, backstab and abuse people's trust. They say it is wrong to borrow money without paying it back. And they even say it is wrong to two-time on your girlfriend.

But these folks just don't know how to be a no-good scoundrel. Contrary to all the propaganda, there is nothing wrong at all with being a no-good, morally-destitute scoundrel. You just have to know how to play your cards right. In fact, great people know how to be great scoundrels. And they become great because they know how to disguise who they really are: Scoundrels.

I started the National Brotherhood of No-Good Scoundrels, Dishonorable Pricks, Low-Down Punks and Plain Lousy Sonofabitches Who Never Call You Back for a simple reason: To show Americans how vital we really are. Since founding the organization, I have struggled to demonstrate that honorable responsibility is not the pathway to success. To the contrary, it is my mission to show that only a dishonorable scoundrel can prevail in this world. And it is not a hard job: If you know how to be a low-down, dishonorable punk and not get caught, there is nothing you cannot accomplish.

Success is all about image. When you're a successful scoundrel, no one knows just how big a scoundrel you really are. If they did, they'd ostracize you and no one would want to talk to you. Scoundrels need people; you can't be successful without them. But real scoundrels know how to control their image. They don’t let people get the right idea about them. They carefully monitor how people perceive them, then skillfully play one unsuspecting idiot off the other to gain all the advantages. Contrary to all the rhetoric, scoundrels aren't haphazard bums. They know exactly what they're doing at all times.

Not everyone has the guts to be an unrepentant, conniving knave. Most people buy into the propaganda and try to live honorable, "decent" lives. A lot of good that does: They wind up working loser jobs for bad pay, then skulking around with their wives and boring children for years on end. Sure, they might get some inward satisfaction from "treating people with respect" and "telling the truth, no matter what."

But at what cost! Wouldn't it be so much better to twist a few arms and tell a few tall tales here and there to really get what you want? Wouldn't life be so much more rewarding if you played some putz like a fiddle, then refused to call him back when he needed you? Why not? As long as you make sure that the guy isn't important for your advancement later, screw him. Tell him what he wants to hear. Inflate yourself. Get what you need from him. Then just forget about him and move on to the next sucker. Remember: Life is a ladder with human rungs. You need to keep moving up if you want to get to the top.

Dishonor, manipulation and double-dealing bring untold rewards. Still, a skillful rogue must make sure he does not generate the wrong impression. Good scoundrels effortlessly master disguises. You can't just trample on people and expect them to take it. Rather, a skillful rogue knows how to totally screw a person over without them knowing until it is too late--if ever. Scoundrels like us only got a bad reputation because some jerk tried to be clever and got caught in the act. And scoundrels only get caught when they are not paying attention to what they are doing. In that sense, true scoundrels are not scoundrels at all: They are virtuosos who know how to spin a story and exploit the hell out of people without anyone ever catching on. That takes skill--not everyone can hack it.

Life is tough enough without worrying about whether you're responsible or ethical. Everyone wants the same things: Money, success, happiness, women, recognition. You know, the usual stuff. Everyone is chasing after the same rewards. It is hard to win even without rules. That is why it amazes me that people insist on "honest dealing," "telling the truth" and "propriety" in their quest for success. That's like tying a boulder to your leg before swimming the English Channel: It greatly impedes your chances to succeed. In fact, it will probably sink you long before you even come close to your goal.

But scoundrels don't bother with boulders. They dress for success. They think about where they want to go and just do it. They do not distract themselves with abstractions. They don't overthink issues; they just deliver results. To that end, it makes no sense to respect everyone. In fact, most people on the road to success are hopeful scoundrels, too, and why would you respect someone who is trying to hoodwink you? No, a skillful rogue simply acts like he respects his fellows, when in truth he knows what they are: Just another low-down sonofabitch determined to block his advance up the ladder. To be a successful scoundrel, you must hold certain assumptions about your fellow man. And that means you expect to be deceived, deluded, used, abused, tossed away, manipulated and forgotten. It’s all part of the ball game: You need a tough heart to keep playing.

Great scoundrels don't get discouraged. They seek out weakness and capitalize on it. Sure, they know that people are out to use them, but they use others before they can be used. And in the off chance that someone actually trusts them, all the better. Clever scoundrels always come out ahead.

In this light, it is inconceivable why society holds us in such contempt. We are the go-getters. On the other hand, we recognize that no-good scoundrels, dishonorable pricks, low-down punks and plain lousy sonofabitches occupy the highest positions in our society. We run the banks. We run the Senate. We run the stock exchange. We run the insurance companies. We control everything. And the beauty of it is that no one knows we are scoundrels--or, if they found out, there's nothing they could do about it. People only ridicule us when we commit some faux pas that blows our cover. Great scoundrels, however, are extremely discreet. They don't make faux pas: They screw everyone else over their whole lives and no one ever notices.

For that reason, all the social criticism against scoundrels makes no difference to a truly dishonorable punk. A masterfully rotten scoundrel never makes a mistake to invite rebuke. He just keeps moving over people until he quietly reaches his goal.

We prefer it that way. The moralists and ethicists can whine all they want about "irresponsibility." They are only talking about amateur scoundrels. Little do the moralists know that professional scoundrels are the ones paying them to do their little jobs. Little do the ethicists know that professional scoundrels are the ones who own the printing companies that publish their little books. Undiscovered, virtuoso scoundrels run this world--and no one will ever know the difference. That's exactly how we like it.

So what is our secret? If being a scoundrel is so advantageous, why do so many people refuse to follow our path? We wish we could provide specific advice in this regard. The most we can say is to put yourself above others, keep your eyes on the prize and do what you need to do to get it. Don’t slow yourself down with categorical loyalties, philosophical principles or--God forbid--conscientious worries.

In a word, a great scoundrel is a great actor. He can play any part. But he must remain believable. In fact, a scoundrel has failed when the world calls him one. Great scoundrels appear to be everything, even if they are nothing. They seem to be friends with everyone, when in truth they have none. In the scoundrel's world, it's all about presentation. It doesn’t matter if there's really nothing there. Very few people ever really look to see if there is, anyway.

So if you really want to be scoundrel, start thinking about your image. Stop thinking about dignity and worth. Stop thinking about honesty, unless it would help to be honest in a particular situation. For a scoundrel, the truth is never absolute. It is just a tool. Mark that and you will go far.

Tread softly. Flatter. Connive. Ingratiate. Betray. Lie. Win.

Be a no-good scoundrel. Because good never got anyone what they wanted. And there's nothing wrong with getting what you want.

THE PRO BONO FARCE : ANOTHER SHAM IN LAW PRACTICE

AN ESSAY

I do not reserve many kind words for the legal profession. In essay after essay, I have criticized “modern lawyering” for its relentless fixation on commercial gain over principle. At the same time, I have written ruthless satires involving “modern lawyering” because “successful lawyers” lend themselves to hypocrisy on many levels. Satire works best when it targets powerful people who claim to advance principle, yet betray it whenever it is profitable. Law practice provides endless opportunities to do exactly that. While the law may enshrine good principles, those who practice it have many incentives to betray those principles. Perhaps this is the necessary result of a legal system that makes both sides “adversaries.” Or perhaps it is just because law is just another business; and all businesses are the same. No matter what the reason, my cynical powers come into sharp focus when analyzing “lawyers’ follies.”

Sometimes I think I will exhaust the rhetorical well when it comes to law practice. But just when I think the well is dry, I stumble upon some new aspect that revives the flow. In short, lawyers are a satirist’s dream. They just keep on giving. True, there are some lawyers out there who truly want to make a difference in society. I do not want to pillory them. Of course, they earn my respect because they actually want to vindicate larger principles, not merely enrich a private law firm. Their motivation differs from the average private attorney. These “public interest” lawyers do not work to get rich; they work to do justice. Private lawyers, by contrast, work to get rich; and they seek justice only to the extent that it appeases their clients’ financial appetites. Yet this is the great tension between law and justice. Justice transcends. It exists without regard to private interest or “advocacy.” It cannot be warped, tailored or obscured to reward one party over another. Private lawyers, however, warp, tailor and obscure for a living. Their chief duty runs to their client, not to justice. They do not want abstract justice; they want to win for their clients, whether or not the result is abstractly “just.”

Still, if you walk into a law firm’s office, you might actually think that lawyers care about justice. Law firms care about winning and making a profit. But they know that doesn’t sound very noble. To attract new business, they can’t honestly tell prospective clients: “Well, we’re in this to win for you and bill the shit out of you in the process.” No, that is too blunt. In America, you can’t just volunteer your motivations like that, even if people really know what they are. Rather, you need to construct a public “veneer,” then let others whisper about “what you’re really after.” In discourse, lawyers want to project a lofty, cerebral image, not a cash-grubbing one. Even if everyone knows that lawyers are cash-grubbers, lawyers never publicly admit to it. Instead, lawyers take refuge in a fog of “elevated professional detachment.” They want outside observers to say: “These are intelligent, well-groomed, well-educated, skilled, successful men and women who understand the law and will work hard to secure justice for me.” That is the impression lawyers want to make when you step into a law firm.

Last week, I stepped into a well-respected law firm. “Well-respected” means that it ranks within the top 250 revenue producers in the United States as reported by a professional magazine called “The American Lawyer.” “Well-respected” is not some muddy, subjective appraisal related to integrity, honor or dedication to principle. No, according to the “American Lawyer” you only make the “well-respected” list if your firm brings in a certain dollar amount every year. You might deliver all the justice in the world, but if you can’t make the dollar cut, you don’t make the “well-respected list.” It was a beautiful lobby: Nice new furniture, immaculate marble floors, a brand new telephone system, glass doors, ice water pitchers everywhere, expensive-looking art on the beige stone walls, gorgeous flower arrangements in sleek purple vases. To the uninitiated visitor, it would seem that these lawyers did very well by advancing justice. After all, lawyers represent the law, and the law is good, right?

What would make an uninitiated visitor think that? This “well-respected” law firm did more than merely tastefully decorate its lobby. It also selectively placed two magazines in the waiting area. One magazine discussed the “Law Firm Charitable Giving Foundation.” The other discussed the firm’s “Commitment to Pro Bono Representation.” Each magazine opened with a statement from the firm’s partners, claiming that the firm does not give money to charity or volunteer its services to indigents for “public relations” purposes. Rather, according to these statements, the firm gives money to charity and renders free legal services to the poor because it “wants to give back to the community” and “advance justice.”

Yet “giving back to the community” and “advancing justice for the poor” would not have decorated the lobby. Nor would it have paid the rent in the massive Manhattan office tower.

Did these lawyers expect me to believe that they care about “the community” and “justice?” What unabashed hypocrisy. Pro bono legal work is a wonderful thing. But major law firms don’t do it because they “care” about justice. They do it for precisely the reason they say they don’t: Public relations. Viewed logically, why would they plaster magazines trumpeting their pro bono work all over the visitors’ area? Judged objectively, it appears the firm wants people to know about its pro bono “commitment.” In turn, it likely expects them to say: “What a compassionate firm,” then send them paying business. In short, major law firms undertake pro bono cases for public relations and advertising reasons. Pro bono is not really “free legal work.” It is an investment calculated to seduce paying clients later. It conveys a false impression that lawyers deeply care about “abstract justice,” when in fact they merely want more paying clients to come their way. In brief, lawyers use pro bono as a marketing ploy, not to “placate their conscience,” “serve the community” or “do justice.”

At this point, someone will object: “You are too cynical. Maybe some private lawyers really want to help others.” I counter this objection with personal experience. I interviewed with several large law firms in Chicago several years ago. During those interviews, I repeatedly asked about the firms’ commitment to pro bono work because I actually did care about justice. I wanted to handle cases involving substantial social issues, not just royalties, supply contracts, fees and lost business. My questions made my interviewers uncomfortable. They mentioned that their firms had a “pro bono benchmark” every year, but quickly changed the subject. They did not seem very enthused by my desire to “waste firm time” on cases that did not yield a profit. I did not get jobs at these firms. In hindsight, I’m grateful I didn’t.

Pro bono work reflects lawyers’ calculated efforts to project an “image” at odds with their commercial nature. Despite all explanations to the contrary, private lawyers do not practice law to secure justice or to “make society a better place.” Rather, private lawyers have one goal in mind: To make more money this year than last year. In law practice, lawyers make money by winning legal disputes, or at least perpetuating them for as long as possible. While legal disputes involve supposedly neutral legal rules and doctrines, the business-minded lawyer sets about manipulating those rules in order to “secure favorable results” for his client. Those “results” generally involve two things: Either (1) Winning a monetary sum; or (2) Saving a monetary sum. “Doing justice” may serve those goals. But often it doesn’t. If it comes between “securing favorable results” and “doing justice,” virtually every lawyer in America will opt for the former—provided, of course, he does not risk his own liberty or professional standing as measured by technical rules.

Against this background, pro bono work offers no direct pathway to commercial success. At best, it provides an indirect one: Business-minded lawyers can trumpet their “pro bono commitment” to draw in paying clients with self-serving tales of “their battles for justice.” Yet no matter how they spin it, their motivation is the same: Commercial success. If projecting an image that the lawyer is “committed to justice” leads to greater commercial success, then the lawyer will take a few pro bono cases for “public relations” purposes. And they have the gall to say they do not do pro bono for that reason.

Any other explanation for lawyers’ pro bono work is facetious. If lawyers started taking cases for “justice only,” legal practices nationwide would collapse. For better or worse, lawyers must adapt their behavior—and their motivations—to commercial reality. Commercial reality in a free market system means “staying afloat.” Staying afloat means making enough money to pay all expenses, then making a decent profit. Pro bono brings in no money. You can’t pay expenses or make a profit without money. In this sense, lawyers have a compelling disincentive to handle pro bono work. Every minute representing an indigent beggar is a minute lost billing an aggrieved pharmaceutical company at $500 an hour. And every $500 lost is $500 that cannot be used to pay expenses or contribute to the partners’ fund. While representing the beggar may result in justice, it is not commercially prudent. Representing the pharmaceutical company, by contrast, is not just prudent; it is the economically reasonable thing to do. In that light, commercial reality dissuades lawyers from pro bono work. Justice is all well and good. But paying rent and salaries is better. Money gets you on the “American Lawyer” Top 500 list, not justice.

Yet what is law all about? Society creates law for some beneficial purpose, not merely to secure money for private interests. But lawyers use law to do exactly that. What happens to the beneficial purposes? I understand that lawyers want to make money. Commerce forces everyone in society to think about how to cope with unending financial obligations. I think a life dedicated to money is unsavory and unrewarding. But I reserve my harshest criticism for lawyers because they pursue financial success by applying rules that should stand for something beyond private commercial gain. Lawyers want people to believe they use law to “fight for justice,” when in fact they use law to win, no matter where justice really lies.

In this sense, lawyers are no different from any other hawker or hustler on the street. They merely use bigger words and reference inscrutable books to sell their wares. They know that the public associates the law with “good” and “justice.” They actively cultivate an image calculated to convince the public that they, too, care about “good” and “justice.” Yet in our commercial world, “good” and “justice” are not profitable courses. On the other hand, appearances are more important than reality in many situations. If the appearance of “good” and “justice” brings in more business, then lawyers will adopt it. Lawyers’ “commitment to pro bono”—along with their advertising about it—is all part of a calculated effort to generate a convincing “appearance.”

Who needs to “be” just when it is sufficient to simply “seem” just? No one can afford to “be” just, can they?

DIGNITY IS NOT DEAD; IT HAS SIMPLY EVOLVED SINCE 1799: A RESPONSE TO DAVID BROOKS

AN ESSAY

In a recent editorial, David Brooks faulted 21st Century American society for failing to adhere to a “dignity code.” See N.Y. Times July 6, 2009. He begins his argument by applauding George Washington as a “model man,” not just a model General or public official. Brooks observes that Washington scrupulously maintained “dignity” by applying 110 maxims from a manual called “Rules of Civility and Decent Behavior in Company and Conversation.” He says that Washington lived his whole life according to these rules, which cultivated such habits as “standing when another person enters the room,” “refusing to publicly broadcast passions” and “living reticently.” For Brooks, this systematic adherence to 18th Century etiquette represents a lost art. He calls Washington “dignified” for having followed these rules because they resulted in “self-mastery” and “disinterested,” private strength. Against this historical background, he laments that most Americans no longer practice “dignity” because they publicly broadcast their feelings and refuse to submit to “social norms” for guidance in life. Brooks asserts that “the old dignity code has not survived modern life.”

But Brooks is not talking about abstract dignity. He is talking about specific, 18th Century etiquette rules. Of course 18th Century etiquette rules have not survived modern life. It’s only natural that they died centuries ago. Our society has changed out of all recognition from colonial America. Yet Brooks—like many figures in both American government and law—equate George Washington and 18th Century “founding values” with intrinsic worth. See http://reasoncommercejustice.blogspot.com/2009/04/our-proud-colonial-traditions-what-is.html. They “fetishize” bygone values such as genteel chivalry and impossibly modest self-control. Brooks notes that, unlike public figures today, Washington refused to publicly air his passions. Rather, his “moral character set him apart.” He was “reticent,” “disinterested,” “dispassionate” and “private.” In Brooks’ estimation, these 18th Century values transformed Washington into a “symbol for dignity.” And—according to Brooks— “dignity is dead” in American life because people do not act like George Washington anymore.

Dignity is not dead in American life. It is just different from 18th Century etiquette codes. Brooks does not understand that the word “dignity” does not refer to George Washington’s personal moral handbook. Rather, “dignity” derives from the Latin word “dignitas,” meaning “worth” or “worthiness.” In English, “dignity” does not mean technical adherence to a particular moral code. Instead, it refers to “bearing, conduct, or speech indicative of self-respect or appreciation of the formality or gravity of an occasion or situation.” Dictionary.com, “Dignity” Meaning 1. It also means “nobility or elevation of character; worthiness.” Id., at Meaning 2. These definitions stress self-respect, nobility and worth. They do not depend upon allegiance to 18th Century moral norms or etiquette technicalities. They do not involve morality, either. Rather, dignity is a broad term. Dignity involves respect and principle. It implies a refusal to countenance certain “base” conduct, both privately and in government. A “dignified” man refuses to adopt certain means to achieve particular ends, even if the ends are noble. A “dignified government” values its citizens; it ascribes worth to them no matter the circumstances. Both men and governments can be dignified without technically following 18th Century “social norms.” And while “disinterest,” “reticence,” “dispassion” and “privacy” can reflect dignity, a dignified person need not always be disinterested, reticent, dispassionate or private. After all, we are only human. Our feelings, emotions and passions define us as much—if not more—than our reason. If we never give air to our emotions or passions, we renounce our humanity altogether. In short, people and governments can be dignified without following Washington’s 110-step formula from 1750.

Brooks places undue weight on the “technical aspects” of 18th Century dignity. And oddly, he concedes that 18th Century dignity cannot survive in the United States. In a striking admission, he says that “capitalism” makes it virtually impossible to scrupulously adhere to Washington’s “dignity code.” After all, in order to achieve commercial success in America, Brooks says that people must “become managers of [their] own brand, [and] do endless self-promoting end zone dances to broadcast their own talents.” How true. Modern commercial values make it well-nigh impossible to both retain dignity and make money. Commerce forces individuals to engage in undignified behavior because commerce is inherently undignified. Commerce wants results and bottom lines, not dignity. Dignity is about means, not ends. Dignity is about lofty sentiments, principles and nobility. Yet commerce is about petty profiteering, forgettable deals and self-enrichment. In commerce, it doesn’t matter how you get there; you just need to get there. That is the opposite of dignity. A dignified person shrinks from certain “dishonorable” pathways to wealth. But a “go-getter” does not. A go-getter would blast past the hesitating man with dignity, take the job, make a fortune and live happily ever after. A lot of good dignity did the other guy: Honor and dignity don’t pay bills.

Brooks is correct in pointing out that dignity involves reticence. Commerce, however, does not like reticence. It likes loud, misleading, public and crass advertising. It likes self-promotion, boasting and ostentation. Quiet guys do not get the job or the promotion, nor do quiet guys open new accounts. In fact, quiet guys get fired. It is OK for rich guys to be “private” or “quiet” once they amass a fortune. But before that, they need to pull out all the dignity stops to get the money. In this sense, modern commercial values in America make dignity an impossible dream. Essentially, the only way to maintain dignity is to refrain from commerce altogether. Yet this is our system. Brooks laments the fact that dignity is hard to find in American life, yet obliquely recognizes that commerce makes dignity a bad business decision. If it comes between “dignified poverty” and “undignified riches,” most Americans will opt for riches, dignity be damned. That is just the way our society works.

In some sense, America’s dwindling dignity reflects its value hierarchy. Although George Washington and the Framers may have appreciated dignity for its own rewards, they did not create a government that makes dignity a prime concern. The word “dignity” appears nowhere in the Constitution. It is not a governmental value. If dignity were really a concern, the Framers could have included language that enshrined it. The Constitution has a commerce clause; but it does not have a “dignity clause.” This was a fundamental value decision. No matter how important “dignity” may have been to the Framers as individuals, they did not consider it a primary government concern. No, commerce was more important than dignity. There are no requirements that Congress enact “dignified laws,” or that the President act in a “dignified manner” or that the Supreme Court issue “dignified opinions” that respect the “dignity of American citizens.” From a constitutional perspective, dignity simply doesn’t matter. Our Framers could have made dignity a core American value, but they chose commerce instead.

In this textual light, Brooks can scarcely complain that Americans “do not practice dignity.” They are just trying to find success in a system that values commerce more than dignity. And dignity has never been—and cannot be—central to a system in which commercial gain is life’s prime motivation.

But not all societies enshrine commercial success as much as America does. Germany, for instance, makes “human dignity” government’s overriding concern. See Basic Law Article 1 § 1: “Human dignity is inviolable.” That is a profound statement. It sets a basic tone for government and for society. It announces that the State cares about dignity; it cares about the “way it does things” as much as the things it wishes to accomplish. There is no such hopeful language in the American Constitution. Rather, it merely delineates governmental powers without any support for overriding human values like dignity. True, nothing in the Constitution prevents people from embracing dignity in their lives. But there is no impulsion to embrace dignity, either. These are the values we have chosen.

Despite all this, dignity is not dead in America. While the Constitution may not reflect a formal commitment to dignity in American life, many Americans nonetheless believe that dignity is important. In this sense, Brooks is wrong to fault Americans for abandoning the “old dignity code,” if there ever were such a code in the first place. Modern-day dignity refers to the dictionary definition, not to 18th Century ideals. In other words, a modern American can be “dignified” without always being reticent or dispassionate. Americans practice dignity in the modern grammatical sense; they attempt to live their lives with some “nobility” and “self-respect.” They refrain from activity that contradicts their principles. Some Americans refuse to act in ways that lower their own sense of personal worth. Some Americans do not pursue “any means necessary” to achieve particular ends. That reflects dignity. Dignity means the strength to follow one’s own principles over crass personal gain. Some Americans do that, even if they are not always reticent or private. In short, dignity is not dead; it has simply evolved. It means something different today than it meant in 1750.

I do not think David Brooks understands this. Rather, he uses 18th Century ideals to scold modern individuals for “failing to master themselves and their passions.” He uses “dignity” as a way to express condemnation for values he does not like. In particular, he singles out Michael Jackson as a man “untouched by any pressure to live according to the rules and restraints of adulthood.” For Brooks, Michael Jackson was “undignified” because he could not act like a “regular adult” and felt no pressure to adhere to “rules and restraints” associated with “adult life.” In other words, Michael Jackson did not live like George Washington. He lived out loud, so he was not reticent. He showed his passions, so he was not dispassionate. He lived publicly, so he was not sufficiently private. Yet does this mean Michael Jackson was “undignified?” If anything, David Brooks is holding Michael Jackson to a distinct moral standard. In this sense, Brooks uses “dignity” more as a moral weapon than as a phrase to express “worth” or “self-respect.” What does “adulthood” have to do with these things? And what is adulthood, anyway? The way Brooks lives? Does this mean that we are not dignified if we do not encounter the same “rules and restraints” that Brooks encounters in his adult life?

I disagree with Brooks here on many levels, primarily because he confuses dignity with moral judgment. Michael Jackson lived an “unconventional life.” He did things many people consider “abnormal” and “strange.” Yet judging him under a “dignity standard” employs the wrong analysis. It is one thing to apply contemporary moral norms to brand “unconventional people.” But dignity implicates different values. Dignity is largely an individual matter; it is about self-respect and worth. Morality, on the other hand, is a group matter; moral condemnation reflects dominant group judgments about particular conduct and habits. In this way, Brooks confuses dignity with morality. He takes his view of personal dignity and incorporates it into a moral rule, which he then applies to judge Michael Jackson.

Brooks’ views about dignity are hopelessly inapplicable. We cannot possibly apply George Washington’s 18th Century etiquette rules in a society that has changed as much as ours has changed. And I place no intrinsic value on 18th Century values. Unlike many prominent judges, politicians and historians, I do not fetishize things simply because they were popular in the 18th Century. I do not categorically revere things because George Washington revered them. Just because George Washington chose to value something does not automatically entitle his values to respect in 21st Century life. During George Washington’s lifetime (1732-1799), for instance, English authorities disemboweled traitors (1746) (see http://www.capitalpunishmentuk.org/hdq.html), and colonial authorities publicly hanged suspected black murderers in chains until their bodies rotted away (1750). See also http://reasoncommercejustice.blogspot.com/2009/04/our-proud-colonial-traditions-what-is.html. Washington himself did not invariably express “noble” or “praiseworthy” sentiments, either. John Marshall, for example, quoted Washington as calling freed slaves “abandoned vagabonds” and “miscreants” who could not serve in the Continental Army because “[t]he rights of mankind and the freedom of America… have numbers sufficient to support them, without resorting to such wretched Assistance.” Marshall, The Life of George Washington (1804)(emphasis added) at p. 273.

In a word, Washington was no saint. And he did not live in a perfectly rarefied age, either. That is why I deeply suspect anyone who blindly assumes that “18th Century values” are somehow “superior” to modern values. Human beings will always be barbaric; but they were generally more barbaric in 1750 than they are in 2009.

Having said all this, dignity is very important to me. Yet I do not subscribe to Brooks’ definition. I do not live my life attempting to mimic 18th Century etiquettes, nor do I deify everything George Washington ever did. Rather, I believe in dignity as worth and individual self-respect. I apply the dictionary definition, not the Washingtonian one. Modern dignity lives on. Washington’s does not. And there is nothing wrong with that. We don’t disembowel people or hang executed slaves in public anymore, either. I’d say that represents an advance in our society, not a regression. Thus, I see no shame in abandoning moralistic “dignity codes” as antiquated as drawing and quartering. We can do better than that.

TAZERS : LEGAL, BUT WRONG

AN ESSAY

Two weeks ago, a Texas highway officer stopped a 72-year-old great-grandmother for driving 60 miles per hour in a 45 speed limit zone. See video at http://www.youtube.com/watch?v=cdDdwxJyZZI. The officer asked the woman to sign a ticket promising that she would appear in court to answer the charge. She refused. The officer ordered her out of her car and violently shoved her onto the roadside. Naturally, she became upset. He raised his voice and threatened to “taze” her unless she complied with his orders. She continued to refuse. Finally, after trying to return to her car, the officer fired his tazer into her body, causing her to shriek and collapse to the ground. As she writhed in pain beneath his feet, the officer shouted: “Get down! Get down! Or you’re going to get tazed again!”

Thanks to the officer’s decisive action, the dangerous suspect surrendered. Well, she really did not have a choice because her muscles were unresponsive. The officer cuffed her and took her into custody. She was charged with speeding and resisting arrest. She suffered no physical injury. When the officer’s dashcam footage made the news, however, the Sheriff’s Office quickly rallied to his defense. A police captain said he acted “properly at all times” and that “no one suffered injury.”

Tazers have generated debate for as long as they have existed. Law enforcement hails them as a revolutionary means to subdue violent, resisting offenders. Liberals call them inhumane, degrading weapons intended to humiliate and subjugate citizens. Law enforcement stresses that tazers “do not cause permanent injury” and are thus “safer than nightsticks” or other bygone restraint methods. Liberals point to the grotesque spectacle that ensues when 50,000 volts of electricity flood through a human body, rendering it instantly limp and motionless. For the liberals, the question is not efficacy. It is dignity and humanity. For law enforcement, the question is crime control and “officer safety.”

I fall on the liberal side in this debate. Nobody likes crime, but no one can suggest that law enforcement should have a free hand in adopting any methods necessary to control it. After all, our Constitution would mean nothing if, as a society, we decided that we wanted to control crime “by any means necessary.” Our Bill of Rights proceeds on the assumption that unchecked government power represents a threat to individual liberty. Government power is most dangerous in the hands of the Executive branch, and that includes the police forces. Without constitutional guarantees securing our bodies, property and dignity, the police could freely detain, question, torture, humiliate, degrade and coerce us at will, all in the name of some nebulous “crime prevention.” We tolerate Executive power only on the understanding that we retain rights against it as individuals. Among those rights is the right to reasonable, dignified treatment by executive officers.

Tazers represent a “means” to enforce the law. For Machiavellians, “means” mean nothing as long as they effectively achieve the desired “ends.” When it comes to crime, the “ends” are compelling: Stopping criminals and enforcing the law. But what means are permissible to effectuate these goals? Machiavelli would have praised Hitler for his commitment to crime control. His police forces knew no boundaries in their efforts to suppress crime. They were highly successful because they had every “means” at their disposal to investigate and prosecute “offenders.” But this example exposes the deep moral flaws in Machiavellian thinking. Means do matter, at least in a constitutional democracy with claimed commitments to lasting principles such as dignity, equality and justice. In America, we have always defined ourselves against tyrants with unrestrained power over citizens. Tyrants employ every means necessary to maintain dominance and control over their subjects. In this sense, Americans have always been deeply suspicious of Machiavellian thinking in government because tyrants read Machiavelli. In our constitutional order, means matter as much—if not more—than the ends.

Tazers bring these age-old issues into focus. Many States now authorize the police to use tazers in order to suppress dangerous or resistant crime suspects. Proponents cite medical evidence that the tazer’s electric charge—while substantial and fearsome to behold—only temporarily shuts down muscle function, leaving the subject uninjured. The subject experiences massive pain for an instant, then it vanishes. Many States embrace tazers because they do not cause “permanent injury.” Many States even reference reports that “old” restraint methods are actually more dangerous because they can potentially cause “permanent injury.” For these States, tazers offer a way to completely subdue suspects without causing injury or placing officers in harm’s way. These States focus on the objective benefits that flow from tazers. They focus on the “ends” that tazers achieve. On paper, it looks good. Tazers are “legal.” They are “modern.” They are “effective.”

But what about reality? Tazers do more than merely “subdue suspects.” They represent a massive, overwhelming intrusion of governmental power onto the body of the individual citizen. Consider the power dynamic in a typical citizen-police confrontation involving a tazer. In most cases, the citizen is unarmed and upset about being accused of a crime. The officer, by contrast, has a gun, wears an official uniform and threatens to employ a futuristic-looking electrical device to render the suspect totally powerless in an instant. Even if the suspect has not committed a serious infraction, the officer holds all the authority. Furthermore, he has the raw, technological means to enforce his will over the suspect. When he says: “Step back,” he has the power to enforce compliance and punish defiance by sending a 50,000-volt shock through anyone petulant enough to question him. Thus, the officer has all the cards. If the suspect does or says something he does not like, he can employ his technological advantage to utterly break the suspect’s physical and emotional capacity to defy him. All the tazer videos show this dynamic at work. The officer seems to relish his ability to reduce his antagonist to utter subjection. Even when the suspect goes down and begins wailing like an injured pig, he continues shouting and even threatens to “taze him again” unless he complies with his every command.

Is this rational law enforcement? Or mere power play?

Tazers are frightening devices. They do more than merely “allow” police to “control” unruly crime suspects. They arm executive officers with a devastating weapon that breaks individual citizens’ will and reduces them to compliant, screaming children. In my view, this is too much. I do not like government action that impinges deeply upon the dignity of the individual, whether or not they are crime suspects. When a police officer shoots an unarmed suspect with a tazer solely to punish him for willfulness or resistance to orders, I see tyranny, not legitimate “crime control.” No matter what benefits the State claims from tazer use, I cannot bear the spectacle of citizens reduced in an instant to a shrieking quarry. It bothers me to know that government can do this to its own citizens in a constitutional democracy. “But it does not injure them,” say the tazer defenders. Perhaps not. But tazers certainly inflict pain, indignity and humiliation on them for daring to question a police officer’s authority, even if it is misplaced. In my eyes, that is too much power for an executive officer to possess. It is not about crime control. It is about governmental conduct. And dignity matters to me.

Sadly, most people disagree with me. They wonder why I have sympathy for crime suspects. They also wonder why I care about some worthless criminal’s dignity. Even the Supreme Court disagrees with me. In case after case, they reject constitutional challenges alleging “arbitrary” police conduct. The Court says that you have a “liberty interest” to be free of “arbitrary police action” that “shocks the conscience” because such action “offends the decencies of civilized conduct.” See, e.g., Sacramento v. Lewis, 523 U.S. 833 (1998). But the Court whittles away that hopeful language by requiring challengers to show that the police “intended to cause harm unrelated to the legitimate object of arrest.” In tazer cases, the police will never admit that they intended to cause you harm; in fact, they will simply say they did not cause you “harm” at all, because tazers “do not cause permanent injury.” Your writhing agony after being hit by 50,000 volts does not qualify as “harm,” because it was not “permanent.” This is the mischief to which hypertechnical legal argument can lead.

For me, dignity means more than the legal abstractions our Supreme Court is willing to define in law. I defend everyone’s dignity against governmental intrusion because I believe in the principles that animate our constitutional order. In my view, that order reflects the primacy of the individual against government action. And in police-citizen confrontations, government action grossly overpowers individual autonomy. In unfair fights, I favor the underdog. I think anyone who believes in the individual over the government should think the same thing. In my eyes, zapping people with tazers because they refuse to comply with intimidating police orders is wrong and unfair, whether it is “legal” or not. Tazers allow government to physically and emotionally break individual citizens into abject submission with a single trigger pull. I do not like that idea.

There are so many things in our society that are “legal but wrong.” I place tazers in that category. What do I mean by this? To understand what I mean, I return to the tension between “ends” and “means.” Legislatures—and the citizens who elect them—can choose to make certain things “legal.” In so doing, they democratically enshrine certain value judgments concerning what “ends” must be achieved. Many State legislatures have decided that tazers admirably advance the governmental interest in “crime control.” They made tazers “legal” without really reflecting on the “means” they chose to accomplish their purpose. Yet there is a different source for “right” and “wrong;” it does not flow from the legislature, or even the Constitution. Legislatures make things legal or illegal; they do not make things “right” or “wrong.” In many cases, legislatures make things legal that are also good. But they also make things legal that are wrong. Tazing people is wrong but legal. It is wrong for government officers to zap citizens into utter submission, whether or not they suffer “permanent injury.” It is wrong to inflict scorching pain on citizens, even if it is “temporary.” It is wrong to inflict pain on citizens merely for being willful or for questioning the basis of governmental action. It is wrong for government officers to use tazers to childishly assert dominance over citizens. No matter what legitimate goals tazers serve, I think they are the wrong means to achieve them.

I am fully aware that law enforcement proponents will heatedly disagree with my views on this subject. They are welcome to disagree with me. I understand that some people value crime control more than others, and that some people believe that criminal suspects do not deserve dignity or respect from government. I know there are people who do not really care whether government violates a person’s dignity as long as that person is “a criminal” or somehow “blameworthy.” I believe the contrary. In my view, dignity and respect are absolute governmental obligations in our constitutional order. They are principles that go beyond mere expediency. They apply whether the subject is a murderer or a saint. And they should prevent government from adopting certain methods to effectuate otherwise legitimate goals.

My response to the law enforcement apologists is this: Once we allow increased government intrusion onto the bodies of individual citizens, what’s next? We allow tazers. They allow officers to inflict pain and degradation on people who have not been convicted of any crime. Why? “Because we want to control crime,” they say. Yet that is a broad mandate. What fearsome methods might we also permit to effectuate that goal, as long as we move “incrementally?” What about a tazer that stops the heart “temporarily?” What about a tazer that causes “temporary memory loss?” These are significant deprivations, no matter whether they are “permanent” or “temporary.” A suspect could claim: “Government stopped my heart,” and no one would care. That is profoundly troubling.

If we do not take a stand for individual dignity at some point, there is no logical end to potential governmental intrusion upon us. If we do not make dignity a meaningful principle, we all degenerate into lawyers arguing about whether something is “legal,” even when we know it’s wrong.

BREAKING CONTRACTS : IT'S ALL ABOUT POWER

AN ESSAY

After the AIG scandal broke last week, I wrote an essay explaining that there is no legal barrier to breaking contracts. Recently, Americans have been horrified to see federal bailout money paying AIG executives whose conduct helped create the economic crisis. This popular outrage, in turn, sparked a debate as to whether the government can abrogate private contracts. Most Americans seem to think that private contracts are inviolable. They seem to think that contracts have a mystical power that makes them immune from State interference. President Obama’s economic adviser, Larry Summers, went so far as to say: “This is a country of laws. The government cannot just abrogate private contracts.”

Yes it can. Government enforces contracts by sovereign grace. If the sovereign decides that a particular contract will be enforced, there is nothing the aggrieved party can do about it within the law. Of course, this would not set a good precedent. After all, people only do business with each other if they know that the law will force the other guy to honor his promise. But this is a policy concern, not a legal one. In essence, the power to enforce contracts stems from pure political might. It has nothing to do with abstractions, principles or sacred vows. And it certainly has nothing to do with whether the United States is a “country of laws.”

In The Prince, Niccolo Machiavelli wrote: “The principal foundations of all states, whether new, old, or mixed, are good laws and good arms… [and]… there cannot be good laws where there are not good arms…[and] where there are good arms, there are bound to be good laws.” The Prince, Chapter 12 at p. 52. Machiavelli’s clear prose reminds us that a “nation of laws” cannot exist without “good arms,” namely, powerful executive authority. Law cannot exist without force, nor can it even come into being without an original coup. In the United States, there would be no Constitution or laws had the colonists not risen up and defeated the British army through “good arms.” Through “good arms,” the United States maintained the essential stability it required to establish “good laws.” Thanks to protection under “good arms,” commercial men could depend on stable laws. They could count on courts to enforce contracts against those who broke their promises. Americans grew accustomed to a “legal State” in which they could dependably rely on courts to enforce private bargains with neutral, reasonable laws.

That remains the case today. Larry Summers did not voice an insane sentiment when he said: “This is a Nation of laws.” Most Americans agree with him. They take pride in the fact that they live in a society in which courts neutrally apply legal principles that technically treat everyone equally. After all, a “Nation of laws” differs from a “Nation of men,” in which a legal rules flow from the wanton caprice of a single individual. In America, we have laws. In theory, the laws apply equally to everyone, and—as the logic goes—that is a good thing.

But these “defenders of the law” forget that their laws would mean nothing without executive power. Courts enjoy power because they can count on the executive to enforce their “principled” decrees. In contract law, they ruminate about abstract ideas like bargain, consideration, benefit, detriment, equality of exchange, restitution, rescission, reformation, mistake, parol evidence and reliance. They even attempt to allot money damages to aggrieved parties according to fixed, “neutral” rules. They then scribble out judgments and force the offending party to pay. If he does not, the court has no institutional power to do anything but write strongly-worded opinions. To enforce its decrees, it must turn to its institutional partner: The Executive. Only the executive has the billy clubs, guns, prisons and handcuffs to browbeat the offending party into paying up. If he does not obey the court, the executive takes away his property or his liberty. To avoid that fate, the offending party does what the court tells him. That is true power: The power to compel. Cf. Kant (“Law is linked to the authority to compel”). Introduction to Legal Doctrine, The Metaphysics of Morals (Einleitung in die Rechtslehre § D, Die Metaphysik der Moral). The executive is powerful because it can directly inflict pain on bodies and take away property. And as Machiavelli knew, nothing compels men more than threatening their property: “[B]ut above all, [a Prince] must abstain from taking the property of others, for men sooner forget the death of their father than the loss of their patrimony.” The Prince, Chapter 17, p. 72.

What good is it to be a “nation of laws” if the laws themselves are stupid or degrading? That was the question Americans asked when they found out that federal bailout money paid multimillion-dollar bonuses to scallywag AIG executives last week. In my view, waving your hands in the air and pontificating about “our Nation of laws” is absurd. Quite simply, the whole rhetoric about the United States as a “nation of laws” is a vacuous talisman. If it is necessary to allow brigands to take money that would not have been available without their skullduggery because that is what “the law dictates,” then I say the “rule of law” is just as stupid as the law itself. During his confirmation hearings in the United States Senate, Chief Justice John G. Roberts repeatedly pledged that he would issue opinions: “Consistent with the Constitution and the rule of law in the United States,” as if the “rule of law” were synonymous with goodness. What is all this nonsense about the “rule of law?” Laws come from men. Men can be stupid. So can their laws. Therefore, to use a lawyer’s logic, the “rule of law” can be stupid, too. I reserve no exalted place in my heart for the “rule of law.” There once were laws that permitted slavery. Under the “rule of law,” men could own other men in this country. If a law is bad, so is “rule under the law.” For that reason, I reject this hypnotic, reflexive insistence on the “rule of law” in every single situation in which legal rules come into question. For me, it is no answer to mouth the words “rule of law” when defending legal principles that lead to intuitive mischief.

Yet there is no need to even reach the question. We need only worry about the “rule of law” if we assume that the executive will enforce legal decrees. In essence, law is about power. Our constitutional system arose from power and does its best to diffuse power across several institutions. In theory, our legislative, executive and judicial branches are supposed to be “equal” in power. In practice, however, we see how artificial and wooden this distinction truly is. After all, who really has power? Only the branch with the power to compel men’s bodies and take their property has real power. Courts have the power to write erudite opinions on archaic constitutional provisions. Legislatures have the power to draft voluminous bills that attempt to better society with new rules and regulations. But only the executive has the power to shoot, kill, take, invade, imprison, threaten and enforce. Without the executive, neither legislative nor judicial “power” would mean anything. Courts and legislatures are like powerless children who depend on their father to do the muscle work. Only the executive has real power, because it is the branch with the “good arms.” And, in Machiavelli’s parlance: “There are no good laws without good arms.” The Prince, Chapter 12, p. 52. Only real power assures that the law has any force at all. On this point, Machiavelli again puts it best: “For, between an armed man and an unarmed one there is no comparison whatsoever, and it is not reasonable that one who is armed should willingly obey one who is unarmed.” The Prince, Chapter 14, p. 63. In this light, should the executive in this country really listen to carping about the “rule of law” in enforcing abhorrent private contracts for AIG executives? No. In Machiavelli’s terms, it would not even be “reasonable” for the “armed” executive to obey an “unarmed” court.

My sentiments here will undoubtedly cause discomfort among legal “process lovers.” Indeed, my article last week prompted a response that: “This is no way to run a government.” On this point I agree. Laws should be followed. Laws provide stability and comfort to commerce, and that inures to everyone’s benefit. When men know that they can obtain a peaceful remedy from a court, they will refrain from private retribution and “collection.” In almost every case, the executive should enforce legal decrees that compel private obligations. But that does not alter the fact that executive enforcement is essentially discretionary. Only the executive is armed; the court has no real power to compel anything. In rare cases—as here with the AIG bonus fiasco—the executive has the institutional discretion to refuse to honor legal decrees. After all, if private contract law leads to a result so repugnant that it reaffirms Charles Dickens’ famous dictum from Oliver Twist: “If this be the eye of the law, sir, then the law is an ass,” then the executive can step in to reverse the outcry. True, some may say that such “indulgences” to popular sentiment are the first step on the road to dictatorship and capricious government. But I say that it is worse to allow perverse “legal” results than to suspend the law in an exceptional case to avoid public indignation.

I have little patience for those who fanatically put their faith in law. Positive law—meaning written laws passed by popular majorities for majority purposes, ostensibly according to logic and human reason—does not invariably lead to good results or justice. In Hitler’s Germany, for instance, positive law—passed by democratic majorities—forbade marriages between Jews and Gentiles. Later German laws made it “legal” to exterminate Jews at concentration camps. This is an extreme example, but it shows that positive law should not be a talisman. Positive law can be bad. For that reason, trust in the “rule of law” can also be misplaced.

We all want our bargains protected. But that does not mean we should allow AIG Executives to scream “rule of law” to create a result at fundamental odds with our common sensibilities. Our common sensibilities may not be written down in a statute or casebook, but they still matter. On this point, we can turn to the executive to exercise its inherent power to deny enforcement.

GETTING THINGS DONE : DOES IT MATTER HOW?

AN ESSAY

As a cynic, I love Niccolo Machiavelli. Writing around 1500, Machiavelli understood that men are deceptive, vainglorious, fickle, petty, violent, manipulable creatures who act solely from self-interest. He bases all his arguments upon this bleak view of humanity. Sadly, common life experience all too often proves him right about men’s motives. Many people recognize his famous maxims from The Prince, namely: “It is better to be feared than loved;” and “The ends justify the means.” In Machiavelli’s world, principle means nothing compared to brute force. It only matters to the extent a ruler seems principled, when in fact he resorts to any means necessary to gain and hold political power. In short, Machiavelli is a cynic. He assumes that men have bad, selfish motives. He admonishes us to plan our interactions with other men with that assumption in mind.

True, we no longer live in Renaissance Italy with its perennial violence and political discord. But Machiavelli’s observations about men and means remain relevant to any human enterprise involving power. I often write about principle and honor. I praise men who adhere to abstract principles, not expediency. Honor refers to a person’s abiding principles. Honor bars men from adopting certain means to accomplish their goals. Machiavelli’s writings, on the other hand, remind me that honorable men rarely achieve or hold power in this world. Instead, only those who espouse honor—yet resort to treachery—win. Powerful men, in other words, live for appearances and results, not principles or conscience.

In The Prince, Machiavelli commonly reaches conclusions after examining historical examples. He typically chooses an example from antiquity, then an analogous example from his time. He draws similarities, analyzes salient elements, then presents conclusions that serve as advice to rulers who find themselves in comparable circumstances. In Chapter 8, Machiavelli examines rulers who achieve power through “crimes.” In the ancient example, he tells us about Agathocles the Sicilian, a “low and abject” military leader. The Prince at p. 36. Agathocles gathered every important Syracusan citizen in one place, telling them he wished to advise them about state affairs. At a signal, he ordered his troops to kill them. With all opposition destroyed at a single blow, Agathocles took over the government. For years afterward, he ruled decisively. Machiavelli even calls his statecraft: “Courageous and perilous effort[].” Id. at p. 37. Still, Machiavelli judges: “Still, it cannot be called virtue to kill one’s fellow-citizens, to betray one’s friends, to be without loyalty, without mercy, without religion; by such methods one can acquire power, but not glory.” Id.

In the modern example, Machiavelli tells us about Oliverotto da Fermo, a fatherless minor nobleman from Fermo. Due to his precarious family situation, Oliverotto’s uncle stepped in to raise him. The Prince at p. 37. At a young age, Oliverotto set out on a military career, during which he demonstrated “intelligence and vigor of body and mind.” Id. That aptitude led him to become the army’s commander. After many years, he decided to return home. He wrote to his uncle and asked that he be given a royal welcome because he had won many honors as a soldier. His uncle agreed. After arriving in Fermo with a whole troupe behind him, Oliverotto told his uncle he wanted to celebrate with a banquet. Every important citizen in Fermo appeared at the banquet. After dinner, Oliverotto advised that he wished to speak with the city governors in private. Along with Oliverotto’s uncle, they followed him into a separate room. Machiavelli describes what happened next: “No sooner were they seated than out from hiding places in the room came soldiers who killed [the uncle] and all the others.” Id. at p. 38. With all opposition crushed, Oliverotto took over the city and ruled it well until he died the following year. During his reign, his neighbors respected him and he withstood every attempt to dislodge him from power.

Machiavelli queries: “How it happened that Agathocles and others like him, after countless treacheries and cruelties, could live secure for so long in their native country…while never being conspired against by their own citizens.” The Prince at pp. 38-39. In answering this question, Machiavelli condemns both Agathocles and Oliverotto for their “wickedness and cruelty.” But he also praises them for effectively seizing power and governing well. On the whole, Machiavelli has more praise than condemnation for these “criminals.” True, they may have acted “dishonorably” to achieve their positions, but what does that matter? For Machiavelli, the real sign of success is whether a ruler keeps order in his State, defends it against foreign enemies and frustrates any attempt to depose him from within. Both Agathocles and Oliverotto fulfilled those criteria. By that standard, then, they were “good rulers.” In short, their results speak louder than the means they used to reach them.

Why be honorable? If criminals win accolades from Machiavelli, does it not make more sense to adopt nefarious, underhanded means to achieve goals than to follow a restrictive honor code? In Machiavelli’s world, an honorable man would never achieve power in the first place because a dishonorable criminal would kill him first. This may seem harsh. After all, in our society we equate the word “honor” with “good people” and “criminals” with incorrigible vagrants who never achieve success. But these generalizations are misleading. And they understate human beings’ remarkable capacity to deceive and hurt each other for personal gain. “Honor” implies that a person refuses to adopt certain means to win success. “Criminals,” on the other hand, are not afraid to trample “honor” in order to win. Criminals are flexible; honorable men are not. In this competition, the criminal will win. Machiavelli may condemn the means, but he would approve the end.

Machiavelli offers one important caveat to those who use “crime” to achieve success. He says: “[Success] depends on whether the cruelties are used well or badly. Those can be called well used (if it is permissible to say “well” about evil) which are done at one stroke, out of the need to make one secure, and which afterward are not persisted in, but are converted into the greatest benefits possible for one’s subjects.” The Prince at p. 39. In this formulation, we sense that Machiavelli does not use the word “crime” as we understand it. For him, “crime” means “violent cruelty,” not any trifling violation of the criminal code. “Violent cruelty,” in turn, represents a means “to secure oneself” and to win “benefits” for one’s people. Machiavelli tells us that violent cruelty works best when it happens “at one stroke” and “is not persisted in.” After all, people do not like cruelty. If a man is repeatedly cruel to enough people, he will be hated. But people forget quickly. If a ruler commits only one sweeping act of violent cruelty that provides long-term benefits to his people, he will not anger anyone.

Again, I ask, what good is honor? A truly honorable man would not commit even one unjust act against anyone, no matter what benefits it might bring. Honorable men do not employ certain means. They would love to bring benefits to themselves and others, but if the end requires unjustifiable means, such as murder or deception, an honorable man would not employ them. “Criminals,” on the other hand, face no such principled qualms. They do not hesitate to use violence if violence brings them long-term success. No moral code binds their behavior, and they actually win praise for dishonorable acts. If human beings are naturally selfish and vain, why would they adopt honor over crime? After all, if crime offers better opportunities to please oneself and others—with little risk of loss—why would anyone adopt the more difficult, honorable path? Who willingly fights a battle with one hand tied behind his back?

Self-interested people think about the most effective means to obtain personal gain. The most effective means are not necessarily the most honorable means. In that light, should it surprise us that there are few honorable men in the world? Sadly, Machiavelli’s political theory squarely answers that question for us: No.

What if long-term economic recovery in this country could only be achieved by murdering 100 paralyzed children? What if economic recovery would permanently secure a political leader’s reputation and power? Would Machiavelli support cruelty to achieve these ends? Would an honorable man?