OESTERHOUDT STRIKES
Last week, I took a walk in Brooklyn. As I made my way up Tillary Street past Flatbush Avenue, I noticed an incredible commercial message from Charles Schwab adorning a bus stop: "We want to make a difference, not just a buck. Let's make a difference together."
I beg your pardon? Do investment houses really care about making anything more than a buck? Why do people invest money in the first place? To turn one buck into two or more bucks. It's all about making bucks. If investing makes any "difference," it's a differential between the amount invested and the amount returned. And everyone wants that differential to be positive.
But let's leave investors aside for a moment. Let's focus on the institutional guys. You know, the investment bankers who craft bewildering "portfolios" designed to churn fees and hopefully yield a nifty profit for the client. Now, an investment banker exists to do two things: (1) To maximize the monetary return on a client's investment; and (2) To maximize his own fees by selecting appropriate transactions. To be blunt, it is all about money. In fact, investment bankers are more than mere employees; they are fiduciaries. They must subordinate their own interests to their clients' interests. They can even be sued for failing to make enough money, because that shows "they did not sufficiently have their clients interests at heart."
In that light, it is preposterous for Charles Schwab to suggest that investment bankers care about anything more than "making a buck." If they cared about anything else--like "making a difference"--they would lose their jobs, clients and everything else they value.
And what does "making a difference" really mean? Have investment houses suddenly lost their collective minds? Do they want to open soup kitchens or something? Do they want to build houses for the homeless? How about pay for health care for indigents? Is that the kind of "social difference" they want to make? The phrase "making a difference" implies broader service to the public, or even ethical purity. It rings with selfless nobility. Yet such things are completely antithetical to an investment house's primary mission: To make profits for themselves and their private clients. There is nothing "public" or "noble" about that enterprise.
Recent stock market scandals only weaken Charles Schwab's pitiful attempt to appear altruistic. Did Lehman Bros. care about "making a difference" when they lured investors into placing money on a housing market they bet would fail? The bottom line is that people expect investment bankers to engage in dirty dealing. It is par for the course. Worse, most investors would prefer their bankers to engage in the most barely legal conduct possible so long as that conduct yields a maximal return. That is what it means to "make a buck," not "a difference."
Commerce is about making bucks, not a difference. That is just the way it works. And it is the height of disingenuousness for anyone to suggest otherwise, let alone massive investment banks that personify the commercial spirit. If investment banks choose to "make a difference," chances are they do so in order to gain tax advantages, not to soothe their conscience.
Put thematically, the clash between "making a buck" and "making a difference" is a clash between commerce and ethics. It is also a clash between ends and means. Commerce is about ends; ethics is about means. A commercial man only cares about the bottom line, no matter how he gets there (provided he does not risk criminal sanction). An ethical man cares about the way he achieves his goal. When a person commits to making bucks, he has a distinctly result-oriented motive. But when a person wishes to make a difference in the ethical sense, he is as much concerned about the way he brings about positive change as he is concerned about the change itself.
In commerce, means are secondary. Investment houses like Charles Schwab know that. If it suddenly adopted "making a difference" as its primary business model, its clients would leave in droves. And the company's shareholders would angrily vote off the "insane" directors who approved such an idiotic way to do business. In their place, the shareholders would quickly appoint directors with a more sensible business model, namely: "Making a buck."
And the new directors would immediately yank those ridiculous posters from the bus stops.
Hey, at least they would be honest.
Showing posts with label Ethics. Show all posts
Showing posts with label Ethics. Show all posts
Tuesday, May 4, 2010
Friday, April 23, 2010
HOW TO BE A GOOD PERSON : IN A LANDLORD'S EYES
OESTERHOUDT STRIKES
At some point in our lives, we all wonder whether we are "good people." We live with others. We know how "good people" act. We have an intuitive sense about what makes a person "good." We even hear things about what makes a person "good:" They are friendly, kind, forbearing, compassionate, ethical, honest, caring, loving, trustworthy, gracious, forgiving and generous. "Good people" do not hurt you. They do what they say; and they apologize if they do not. They consider you at the same time they consider themselves. Aristotle and many other philosophers have written tomes about what it takes to be "good." It is an age-old question.
Of course, not everyone can agree on what is "good." You can't know you are a good person until you know what is good in the first place. What is good in one person's eyes may be bad in another. It is easy to lay down absolute standards for goodness. Yet like all ethical dilemmas, only we can say whether we subjectively feel that we have done right. Nonetheless, we can generally all agree that being "good" involves living without intent to injure other people. In that sense, being a "good person" essentially depends on positive motivation. And that positive motivation shines through in good actions toward others. Good people think selflessly; they refuse to hurt others to advance their interests. Bad people do the opposite; they are willing to hurt others to help themselves.
Being a good person is an individual lifestyle. It does not depend on how much money you make or what you do for a living. While it is possible to identify "objective" factors that hint whether a person is "good," true goodness comes from the heart, not from action alone. Enron fraud artists probably donated some money to charity the same year they robbed millions; that donation did not make them good people. No, being good is internal; and good shines through in external action. It is hard to verify. But everyone knows it when they see it.
It is refreshing to know a truly good person because they are rare. In our world, it is hard to be selfless and honorable. There are so many impulsions to discard goodness toward others in order to advance yourself. By the same token, it is hard to be patient. No one wants to wait or understand others' problems. Nor do they want to waste their time on others without reward. After all, people need to fend for themselves. They only have a limited time to get the job done. If they waste their time being nice to others, they might injure their own fortunes. And no one likes to do that. Put simply, we expect most people not to be good; our society frustrates goodness. That is why it is a welcome relief to meet a good person.
There is no formula to being a good person. Yet people throw the term around far more than they should. In many cases, they say someone is "good" solely because they act in a way that enriches them. That misunderstands what it means to be good. A truly good person acts with malice toward no one. The fact that a person acts the way another person wants them to does not make him good. To the contrary, expecting a person to act in a way that is beneficial to you undermines their value as an individual. It "instrumentalizes" them; it makes them pawns in a game you want to win. Just because someone pays you according to a contract does not make them "good." Merely fulfilling an external legal obligation is no shortcut to goodness. A good person holds to his word because it is his word, not because the law threatens him to do so.
Yet many people think that observing external obligations makes you "good." It is easy to make this mistake. After all, complying with the law seems like a "good" thing to do. But the law is indifferent to intention. And intention is the only thing that determines whether a person is good. In that sense, it is possible to seem good by fulfilling every imaginable legal standard. Yet it is also possible to have only bad intentions while complying with the law. You can be a total scoundrel yet do nothing illegal. If a person did not know you, they might say: "Well, he is law-abiding. So he must be a good person." To that extent, fulfilling external obligations can disguise ethical flaws.
I encountered an example to illustrate this easily confused distinction in the New York Post a few days ago. I read an article about some poor web designer who got run over in a Brooklyn street. See N.Y. Post, Horror hit-run in B'klyn, April 19, 2010 at p. 9. The article quoted his landlord. She spoke about his character: "He works. He comes home. He's a very good person (emphasis added)."
What did the landlord know about this guy? How did she know he was a "very good person?" She based her assessment on the fact that he works and comes home. What does that have to do with ethical goodness or pure intention? Nothing. If anything, it reveals that the landlord thinks the web designer was a "good person" solely because he went to his job, came home every night and ostensibly paid the rent. He might have been an utter scoundrel who doublecrossed his friends and broke women's hearts. Yet as far as the landlord was concerned, he was a "good person" because he adhered to his contractual obligations to pay rent. He also was a "good person" because he quietly went to his job and caused no disturbances.
I suppose this is what it takes to be a "good person" in a landlord's eyes. Landlord apply a "formula" for goodness: Have good credit; make an income; cause no trouble; pay your rent; keep your mouth shut; pay next month's rent; pay a late fee after the first. Your intentions do not matter. And "being a good person" means acting exactly the way the landlord wants. In this case, the landlord happened to like the way her tenant behaved because he did what enriched her. She morally approved him because his behavior coincided with her interests. His own ethical qualities did not influence her appraisal. It was "all about her." And that determined whether he was "good."
This gravely misunderstands what it means to be a "good person." A person is not "good" simply because he acts in a way that enriches another. Nor is he "good" simply because he adheres to contractual obligations under law. Rather, goodness is more subtle than that. There is no checklist. Action is not enough. It takes real reflection to see whether someone is good. Getting a rent check in the mail every month does not suffice to prove goodness.
Criminals and scallywags can mail rent checks, too. That does not make them good people.
But who has time to sit down and really think about character in our society? It seems we only care about character when we want to damage a foe with some embarrassing "flaw." And once again, we do that to merely to advance ourselves at their expense. By hurting them, we help ourselves. And hurting others is rarely good.
At some point in our lives, we all wonder whether we are "good people." We live with others. We know how "good people" act. We have an intuitive sense about what makes a person "good." We even hear things about what makes a person "good:" They are friendly, kind, forbearing, compassionate, ethical, honest, caring, loving, trustworthy, gracious, forgiving and generous. "Good people" do not hurt you. They do what they say; and they apologize if they do not. They consider you at the same time they consider themselves. Aristotle and many other philosophers have written tomes about what it takes to be "good." It is an age-old question.
Of course, not everyone can agree on what is "good." You can't know you are a good person until you know what is good in the first place. What is good in one person's eyes may be bad in another. It is easy to lay down absolute standards for goodness. Yet like all ethical dilemmas, only we can say whether we subjectively feel that we have done right. Nonetheless, we can generally all agree that being "good" involves living without intent to injure other people. In that sense, being a "good person" essentially depends on positive motivation. And that positive motivation shines through in good actions toward others. Good people think selflessly; they refuse to hurt others to advance their interests. Bad people do the opposite; they are willing to hurt others to help themselves.
Being a good person is an individual lifestyle. It does not depend on how much money you make or what you do for a living. While it is possible to identify "objective" factors that hint whether a person is "good," true goodness comes from the heart, not from action alone. Enron fraud artists probably donated some money to charity the same year they robbed millions; that donation did not make them good people. No, being good is internal; and good shines through in external action. It is hard to verify. But everyone knows it when they see it.
It is refreshing to know a truly good person because they are rare. In our world, it is hard to be selfless and honorable. There are so many impulsions to discard goodness toward others in order to advance yourself. By the same token, it is hard to be patient. No one wants to wait or understand others' problems. Nor do they want to waste their time on others without reward. After all, people need to fend for themselves. They only have a limited time to get the job done. If they waste their time being nice to others, they might injure their own fortunes. And no one likes to do that. Put simply, we expect most people not to be good; our society frustrates goodness. That is why it is a welcome relief to meet a good person.
There is no formula to being a good person. Yet people throw the term around far more than they should. In many cases, they say someone is "good" solely because they act in a way that enriches them. That misunderstands what it means to be good. A truly good person acts with malice toward no one. The fact that a person acts the way another person wants them to does not make him good. To the contrary, expecting a person to act in a way that is beneficial to you undermines their value as an individual. It "instrumentalizes" them; it makes them pawns in a game you want to win. Just because someone pays you according to a contract does not make them "good." Merely fulfilling an external legal obligation is no shortcut to goodness. A good person holds to his word because it is his word, not because the law threatens him to do so.
Yet many people think that observing external obligations makes you "good." It is easy to make this mistake. After all, complying with the law seems like a "good" thing to do. But the law is indifferent to intention. And intention is the only thing that determines whether a person is good. In that sense, it is possible to seem good by fulfilling every imaginable legal standard. Yet it is also possible to have only bad intentions while complying with the law. You can be a total scoundrel yet do nothing illegal. If a person did not know you, they might say: "Well, he is law-abiding. So he must be a good person." To that extent, fulfilling external obligations can disguise ethical flaws.
I encountered an example to illustrate this easily confused distinction in the New York Post a few days ago. I read an article about some poor web designer who got run over in a Brooklyn street. See N.Y. Post, Horror hit-run in B'klyn, April 19, 2010 at p. 9. The article quoted his landlord. She spoke about his character: "He works. He comes home. He's a very good person (emphasis added)."
What did the landlord know about this guy? How did she know he was a "very good person?" She based her assessment on the fact that he works and comes home. What does that have to do with ethical goodness or pure intention? Nothing. If anything, it reveals that the landlord thinks the web designer was a "good person" solely because he went to his job, came home every night and ostensibly paid the rent. He might have been an utter scoundrel who doublecrossed his friends and broke women's hearts. Yet as far as the landlord was concerned, he was a "good person" because he adhered to his contractual obligations to pay rent. He also was a "good person" because he quietly went to his job and caused no disturbances.
I suppose this is what it takes to be a "good person" in a landlord's eyes. Landlord apply a "formula" for goodness: Have good credit; make an income; cause no trouble; pay your rent; keep your mouth shut; pay next month's rent; pay a late fee after the first. Your intentions do not matter. And "being a good person" means acting exactly the way the landlord wants. In this case, the landlord happened to like the way her tenant behaved because he did what enriched her. She morally approved him because his behavior coincided with her interests. His own ethical qualities did not influence her appraisal. It was "all about her." And that determined whether he was "good."
This gravely misunderstands what it means to be a "good person." A person is not "good" simply because he acts in a way that enriches another. Nor is he "good" simply because he adheres to contractual obligations under law. Rather, goodness is more subtle than that. There is no checklist. Action is not enough. It takes real reflection to see whether someone is good. Getting a rent check in the mail every month does not suffice to prove goodness.
Criminals and scallywags can mail rent checks, too. That does not make them good people.
But who has time to sit down and really think about character in our society? It seems we only care about character when we want to damage a foe with some embarrassing "flaw." And once again, we do that to merely to advance ourselves at their expense. By hurting them, we help ourselves. And hurting others is rarely good.
Thursday, April 1, 2010
"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.
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.
Wednesday, March 24, 2010
AN ETHICAL PRESIDENT? OBAMA, LINCOLN AND THE HEALTH CARE VICTORY
AN ESSAY
While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.
Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.
For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.
Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.
But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.
In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.
Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."
Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.
It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.
Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.
Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!
But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.
He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.
Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.
As I have always said, there is more to life than winning games.
While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.
Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.
For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.
Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.
But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.
In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.
Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."
Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.
It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.
Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.
Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!
But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.
He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.
Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.
As I have always said, there is more to life than winning games.
Monday, March 22, 2010
LAWYERS : WHAT'S IN A NAME? MORE THAN YOU THINK
AN ESSAY
Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.
But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."
People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.
But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.
Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.
Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.
Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.
In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."
This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.
In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.
But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."
So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?
In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.
This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.
But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.
In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.
Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.
But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."
People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.
But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.
Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.
Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.
Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.
In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."
This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.
In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.
But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."
So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?
In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.
This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.
But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.
In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.
Thursday, March 11, 2010
CONTRACTS OR CONSCIENCE? AN ETHICAL DILEMMA
AN ESSAY
During my first year in law school, I struggled to learn the endless verbal formulas and doctrines that apparently made the law a flawless machine. I did not have time to reflect on the law's theoretical weaknesses or its cynical role in maintaining power structures in our society. No, I was more worried about learning all the recipe-like elements for particular torts, contract defenses and crimes. I spent my time memorizing lists and hoping I would remember them for the exam.
It was a stressful time for me. It probably did not need to be, but I made it so. It likely had something to do with all the other stressed-out, high-striving, perspiring people around me. Put yourself in a room full of panicked people and chances are you'll soon feel panicked, too.
Despite all the stress and anxiety, however, I remember certain moments with great clarity. Now that several years have passed since law school, I understand these moments in a new way. At the outset I must confess that--in hindsight--I was never really law school material. I might have studied it well; but it was difficult for me--and almost unnatural--to suspend my creative powers for three long years. True, I always retained my satirical mistrust for power. But in law school, I had to suppress my bitter urge to laugh for long enough to get through the rigid curriculum.
I'm glad I managed it then, because there's no way I could have managed it today. I've returned to Nietzsche. I have reverted to my nature. I am--to use a Shakespearean phrase--a "satirical rogue." Yes, an analytical satirical rogue to be sure; but a rogue nonetheless. I have trouble taking anything too seriously, especially so-called "authorities." I have a socially-dangerous ability to see through pretense and to sniff out unfairness. I am not very discreet either. I call spades spades. I don't even whisper. I listen to my conscience and I speak my mind. These are not admirable characteristics for those who wish to make partner at a law firm.
Having returned to my natural habitat over the last few years, I now analyze my law school memories in a way that affirms my identity. Here's a good example: I was sitting in our first-year contracts class. Our professor had stumped everyone. It was some hypothetical problem about some guy who made a promise to another then broke it. The question was whether the aggrieved person could sue the other for breach of contract. The professor asked what legal rule justified recovery in the case. Several uneasy moments passed. About 90 twentysomethings sat there staring at their laptops in an effort not to be noticed.
Finally, I raised my hand and said: "Well, he made a promise and broke it." The professor sneered at my response. I will never forget the look on her face. Then she said: "So what if you break your promise? What does that have to do with anything."
At the time, I did not think too much about the professor's response. I was too worried about memorizing legal recipes. But over time, I have come to see this moment as a perfect illustration for the proposition that law and ethics virtually exclude each other. And I have also come to see this moment as an expression of my own character. It should have alerted me that I was ethically uneasy with the law. After all, in my heart I care whether I tell the truth. If I make a promise, my heart hurts if I break it. Yet my heart does not concern the law. The law deals only in extrinsic indicia, not ethical worries. The law is about empirically observable factors, not the pangs of conscience. When I raised my hand in that class, I showed my nature: At that early time in my law school career, I thought the law and ethics overlapped. I could not have known at the time that they do not.
From an ethical perspective, a promise is a promise. You fulfill it because it is the "right thing to do." You do not hem, haw, qualify, vacillate or renege. You do what you say because it bothers your heart if you do not. If you have a conscience, it hurts to break a promise. Then again, if you are unethical, it does not bother you to break a promise. Your heart does not torture you for the decision. You just move on; you break your word as necessary to suit present circumstances. That may be realpolitik. It may even be legal. But it is not ethical. Ethics is internal; it is about the heart and intuitive feelings. By contrast, law is external; it has nothing to do with the heart. Detective Alonzo, Denzel Washington's unscrupulously corrupt (and successful) character in Training Day (2001), put the distinction best when he told his ethically troubled partner: "It ain't what you know. It's what you can prove."
In ethics, you know. In the law, you prove.
From a legal perspective, there are mere promises and there are contracts. Contrary to popular belief, contracts are not necessarily imposing-looking official documents that you sign. You can assent to a contract without ever seeing a paper. Rather, contracts are legally-enforceable promises, whether written or not. To make a promise legally enforceable, it must meet certain objective elements. A "promise in the wind" might trigger an ethical responsibility to honor it. But unless the promise meets technical legal elements, you cannot go to court to force the other guy to honor his word.
Contracts serve commerce. They support our economic system. They give assurance to business people that others will adhere to their promises. As such, the law only enforces promises that arise in "bargained-for exchange." The law calls this "consideration." In theory, this means that both sides haggle over a deal. Each side benefits and suffers detriment in equal measure. One party parts with money. That is detriment. The other party gains the money. That is benefit. But to get the money, one party must do something. That is detriment. The other party receives something desirable from the activity. That is benefit.
This is what makes a promise enforceable at law: Bargaining. Exchange. Haggling. Negotiation. Dickering. It is commercial. It is not gratuitous. In fact, gifts are not contracts. Quite the contrary: If only one party in a transaction receives benefit without a bargain, there is no contract. A kid can't sue his father if his father simply tells him he'll buy him an Xbox, then he breaks his word.
I mention all this to show that contracts are strictly technical. As such, the heart plays no part in their formation or performance. Put another way, ethics exerts no influence on contracts, even if it exerts influence on individuals who make promises. In fact, sometimes it makes more economic sense to break a contract than to keep performing it. For example, if a farmer promises to sell corn to a wholesaler at $1 a pound for a year, but then the price of corn suddenly rises to $10 a pound, it makes more sense to break the contract than keep performing it at a loss. After all, the law only provides a remedy for the contract price. In this case, the farmer could easily break the promise to sell for $1, pay the wholesaler $1 damages, then sell his corn at $10 a pound for a huge profit.
It might be unethical to break promises, but in circumstances like these, money talks and ethics walks. From the law's perspective, it makes more sense to break a promise than continue performing at a loss. The law actually encourages this unethical result. This demonstrates once again that contracts exist to support our free market economic system, not ethical imperatives.
In our free market economic system, people want to profit from their bargains. If they make a deal, they want their money. Contracts provide them with a weapon to either force compliance with the bargain or force the bad party to pay the expected profit. That is why contracts exist: To ensure that commercial men make their profits. They protect expectations. And contract law is completely indifferent to ethical considerations if they cut against those expectations.
Despite the law's requirements, sometimes ethical considerations wield very strong influence on individual people. And sometimes the imperative to tell the truth is not the only ethical conundrum that intervenes to interrupt a contract.
In the movie, Ray (2004), for example, Ray Charles makes a contract to play several concerts in racially segregated Georgia during the early 1960s. While he leads his band into a concert hall, protestors clamor that he is ethically wrong to support an unjust social custom. At first, Ray says that he has a contract with the promoters to do the show. But then he stops and thinks. Finally, he says: "No, no, they're right. Everybody get back on the bus. We're not doing any more shows at segregated venues." The promoter gets furious and says: "You have a contract to do these shows! I'll sue your black ass for this, Ray, and I'll win!"
Ray had profound ethical qualms about performing a contract that indirectly supported racial segregation. His conscience compelled him to refuse to perform it. But from a legal perspective, the promoter was right: He would win the case against Ray. Contract law cares nothing for ethics; if you make an enforceable contract and you refuse to perform it, it is no excuse to say: "I had an ethical problem with the subject matter." As admirable as that sentiment may be, it would not save you from paying full damages to the other party in a contract case. In this light, contract law once again supports commercial expectations, not ethical imperatives. It even supports commercial expectations when those commercial expectations perpetuate fundamental injustice. As long as there is a bargained-for exchange, the show must go on. Ethics is no excuse.
In hindsight, Ray could have avoided the problem altogether if he had raised his ethical objection prior to making the contract. Ethics can dissuade a person from entering into bargains that implicate ethical problems. But once made, ethics cannot excuse performance.
Still, this is hypertechnical rubbish. Conscience does not always materialize on cue. Sometimes our ethical sensibilities only awake once a contract begins. Perhaps it is not possible to foresee ethical difficulties in a contract until after we strike the deal. Yet the law does not see it that way. Once you make a deal, you are stuck with it, no matter what your conscience says about it. You might be able to shed your obligations by pleading some other, legal, defense. But neither ethics nor conscience is on the list of acceptable legal defenses.
And why should they be? Contracts are about commercial expectations. What does conscience have to do with those? The most successful commercial men easily escape all these issues by adopting a simple tactic: Just don't have a conscience.
Without a conscience, life is easy. You just follow the rules in the contract and go with the flow.
During my first year in law school, I struggled to learn the endless verbal formulas and doctrines that apparently made the law a flawless machine. I did not have time to reflect on the law's theoretical weaknesses or its cynical role in maintaining power structures in our society. No, I was more worried about learning all the recipe-like elements for particular torts, contract defenses and crimes. I spent my time memorizing lists and hoping I would remember them for the exam.
It was a stressful time for me. It probably did not need to be, but I made it so. It likely had something to do with all the other stressed-out, high-striving, perspiring people around me. Put yourself in a room full of panicked people and chances are you'll soon feel panicked, too.
Despite all the stress and anxiety, however, I remember certain moments with great clarity. Now that several years have passed since law school, I understand these moments in a new way. At the outset I must confess that--in hindsight--I was never really law school material. I might have studied it well; but it was difficult for me--and almost unnatural--to suspend my creative powers for three long years. True, I always retained my satirical mistrust for power. But in law school, I had to suppress my bitter urge to laugh for long enough to get through the rigid curriculum.
I'm glad I managed it then, because there's no way I could have managed it today. I've returned to Nietzsche. I have reverted to my nature. I am--to use a Shakespearean phrase--a "satirical rogue." Yes, an analytical satirical rogue to be sure; but a rogue nonetheless. I have trouble taking anything too seriously, especially so-called "authorities." I have a socially-dangerous ability to see through pretense and to sniff out unfairness. I am not very discreet either. I call spades spades. I don't even whisper. I listen to my conscience and I speak my mind. These are not admirable characteristics for those who wish to make partner at a law firm.
Having returned to my natural habitat over the last few years, I now analyze my law school memories in a way that affirms my identity. Here's a good example: I was sitting in our first-year contracts class. Our professor had stumped everyone. It was some hypothetical problem about some guy who made a promise to another then broke it. The question was whether the aggrieved person could sue the other for breach of contract. The professor asked what legal rule justified recovery in the case. Several uneasy moments passed. About 90 twentysomethings sat there staring at their laptops in an effort not to be noticed.
Finally, I raised my hand and said: "Well, he made a promise and broke it." The professor sneered at my response. I will never forget the look on her face. Then she said: "So what if you break your promise? What does that have to do with anything."
At the time, I did not think too much about the professor's response. I was too worried about memorizing legal recipes. But over time, I have come to see this moment as a perfect illustration for the proposition that law and ethics virtually exclude each other. And I have also come to see this moment as an expression of my own character. It should have alerted me that I was ethically uneasy with the law. After all, in my heart I care whether I tell the truth. If I make a promise, my heart hurts if I break it. Yet my heart does not concern the law. The law deals only in extrinsic indicia, not ethical worries. The law is about empirically observable factors, not the pangs of conscience. When I raised my hand in that class, I showed my nature: At that early time in my law school career, I thought the law and ethics overlapped. I could not have known at the time that they do not.
From an ethical perspective, a promise is a promise. You fulfill it because it is the "right thing to do." You do not hem, haw, qualify, vacillate or renege. You do what you say because it bothers your heart if you do not. If you have a conscience, it hurts to break a promise. Then again, if you are unethical, it does not bother you to break a promise. Your heart does not torture you for the decision. You just move on; you break your word as necessary to suit present circumstances. That may be realpolitik. It may even be legal. But it is not ethical. Ethics is internal; it is about the heart and intuitive feelings. By contrast, law is external; it has nothing to do with the heart. Detective Alonzo, Denzel Washington's unscrupulously corrupt (and successful) character in Training Day (2001), put the distinction best when he told his ethically troubled partner: "It ain't what you know. It's what you can prove."
In ethics, you know. In the law, you prove.
From a legal perspective, there are mere promises and there are contracts. Contrary to popular belief, contracts are not necessarily imposing-looking official documents that you sign. You can assent to a contract without ever seeing a paper. Rather, contracts are legally-enforceable promises, whether written or not. To make a promise legally enforceable, it must meet certain objective elements. A "promise in the wind" might trigger an ethical responsibility to honor it. But unless the promise meets technical legal elements, you cannot go to court to force the other guy to honor his word.
Contracts serve commerce. They support our economic system. They give assurance to business people that others will adhere to their promises. As such, the law only enforces promises that arise in "bargained-for exchange." The law calls this "consideration." In theory, this means that both sides haggle over a deal. Each side benefits and suffers detriment in equal measure. One party parts with money. That is detriment. The other party gains the money. That is benefit. But to get the money, one party must do something. That is detriment. The other party receives something desirable from the activity. That is benefit.
This is what makes a promise enforceable at law: Bargaining. Exchange. Haggling. Negotiation. Dickering. It is commercial. It is not gratuitous. In fact, gifts are not contracts. Quite the contrary: If only one party in a transaction receives benefit without a bargain, there is no contract. A kid can't sue his father if his father simply tells him he'll buy him an Xbox, then he breaks his word.
I mention all this to show that contracts are strictly technical. As such, the heart plays no part in their formation or performance. Put another way, ethics exerts no influence on contracts, even if it exerts influence on individuals who make promises. In fact, sometimes it makes more economic sense to break a contract than to keep performing it. For example, if a farmer promises to sell corn to a wholesaler at $1 a pound for a year, but then the price of corn suddenly rises to $10 a pound, it makes more sense to break the contract than keep performing it at a loss. After all, the law only provides a remedy for the contract price. In this case, the farmer could easily break the promise to sell for $1, pay the wholesaler $1 damages, then sell his corn at $10 a pound for a huge profit.
It might be unethical to break promises, but in circumstances like these, money talks and ethics walks. From the law's perspective, it makes more sense to break a promise than continue performing at a loss. The law actually encourages this unethical result. This demonstrates once again that contracts exist to support our free market economic system, not ethical imperatives.
In our free market economic system, people want to profit from their bargains. If they make a deal, they want their money. Contracts provide them with a weapon to either force compliance with the bargain or force the bad party to pay the expected profit. That is why contracts exist: To ensure that commercial men make their profits. They protect expectations. And contract law is completely indifferent to ethical considerations if they cut against those expectations.
Despite the law's requirements, sometimes ethical considerations wield very strong influence on individual people. And sometimes the imperative to tell the truth is not the only ethical conundrum that intervenes to interrupt a contract.
In the movie, Ray (2004), for example, Ray Charles makes a contract to play several concerts in racially segregated Georgia during the early 1960s. While he leads his band into a concert hall, protestors clamor that he is ethically wrong to support an unjust social custom. At first, Ray says that he has a contract with the promoters to do the show. But then he stops and thinks. Finally, he says: "No, no, they're right. Everybody get back on the bus. We're not doing any more shows at segregated venues." The promoter gets furious and says: "You have a contract to do these shows! I'll sue your black ass for this, Ray, and I'll win!"
Ray had profound ethical qualms about performing a contract that indirectly supported racial segregation. His conscience compelled him to refuse to perform it. But from a legal perspective, the promoter was right: He would win the case against Ray. Contract law cares nothing for ethics; if you make an enforceable contract and you refuse to perform it, it is no excuse to say: "I had an ethical problem with the subject matter." As admirable as that sentiment may be, it would not save you from paying full damages to the other party in a contract case. In this light, contract law once again supports commercial expectations, not ethical imperatives. It even supports commercial expectations when those commercial expectations perpetuate fundamental injustice. As long as there is a bargained-for exchange, the show must go on. Ethics is no excuse.
In hindsight, Ray could have avoided the problem altogether if he had raised his ethical objection prior to making the contract. Ethics can dissuade a person from entering into bargains that implicate ethical problems. But once made, ethics cannot excuse performance.
Still, this is hypertechnical rubbish. Conscience does not always materialize on cue. Sometimes our ethical sensibilities only awake once a contract begins. Perhaps it is not possible to foresee ethical difficulties in a contract until after we strike the deal. Yet the law does not see it that way. Once you make a deal, you are stuck with it, no matter what your conscience says about it. You might be able to shed your obligations by pleading some other, legal, defense. But neither ethics nor conscience is on the list of acceptable legal defenses.
And why should they be? Contracts are about commercial expectations. What does conscience have to do with those? The most successful commercial men easily escape all these issues by adopting a simple tactic: Just don't have a conscience.
Without a conscience, life is easy. You just follow the rules in the contract and go with the flow.
Friday, February 5, 2010
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 WORLDBy : 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.
Tuesday, January 26, 2010
LAWYERS ARE BAD MEN AND CLIENTS ARE ONE-DIMENSIONAL SIMPLETONS...AND THERE'S NOTHING WRONG WITH THAT
AN ESSAY
Over the last few days, I have been paging through my old law school ethics casebook, The Law and Ethics of Lawyering (Foundation Press 4th Ed. 2005). When I took this course in law school, I immediately recognized it was different. No other course investigated ethical quandaries in law practice. Sadly, our professor seemed less concerned with the abstract philosophical dimension to the course than with its technical aspects. After all, it is hard to get lawyers to understand ethics because lawyers understand law.
Contrary to popular belief, law and ethics are distinct from each other. Ethics are internal, subjective conceptions concerning the "right" decisions to take in life's ever-changing circumstances. Ethics depends on individual conscience. Law, by contrast, is nothing more than an official collection of written rules that a State formulates to govern external behavior. Law does not require conscience; it requires only technical compliance.
Applying these definitions, it is easy to see that a person can act legally without being ethical at all.
I have written at length about the incongruous relationship between ethics and law. The relationship is uneasy not just because ethics and law stand at opposite philosophical poles. Rather, the relationship is doubly uneasy because "lawyering" in America is adversarial. It is hard to adhere to ethical norms when you are constantly trying to "beat" your opponent and win money. By the same token, American lawyering is extremely commercial. Successful lawyers win their cases because they want to make money. This makes them "result-oriented." That's bad for ethics because ethics is less concerned with results than with means. An ethical person refuses to act in certain ways or even conceive certain actions. Put another way, ethics disqualifies particular means from consideration. Yet a "result-oriented" person--like the average American lawyer--refuses to take any means off the table. When you want to win, you don't refuse to play all your cards.
Yet this is how lawyers must think. After all, they serve the law, not ethics. The law prescribes conduct through language. Lawyers advise clients how to exploit ambiguities in language to avoid the law's reach. All language is imperfect. The law is no exception. Lawyers seize on the law's linguistic imperfections every day to make a living. How can ethics survive in an atmosphere where everyone just wants to game the system?
Sure, lawyers all must take "ethics courses" just like I did. But teaching "ethics" to a lawyer is something like teaching dining room etiquette to a wild animal. Law students take the ethics course because they must: It is required to graduate. And even then, most students view the course as a meaningless formality. Rather than using the course to cultivate ethical sensibilities and become "ethical people," they learn how to read "official ethics rules," then tailor their behavior to avoid censure from professional boards. In essence, then, the "ethics" course devolves into yet another course on law: How to read written standards and make arguments designed to exploit weaknesses in language.
But I am not your average guy. I might have done well in law school, but I hesitate to call myself a "lawyer." No, I am too interested in theory to be a lawyer. I am too interested in ideas and philosophy to blindly advocate a client's selfish financial interests until I die or retire. Put simply, I think deeply about the law and its relationship to civilization. That disqualifies me from everyday "law practice." My commitment to theory might drastically reduce my income. But it dramatically increases my understanding about the world we inhabit.
When I read text from my old ethics casebook, I relate it to all my other ideas about law and civilization. Recently, for example, I re-read Oliver Wendell Holmes' musing on the lawyer's role in American society. He said: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good man, who finds his reasons for conduct, whether inside the law or out of it, it the vaguer sanctions of conscience." The Path of the Law (1920) at p. 169.
Holmes' remark closely tracks my own views about the law and human nature. In short, Holmes understands that the law essentially serves "bad men" who just want to know whether they will lose their bodily freedom or their money, not "good men" who seek answers in the "vaguer sanctions of conscience." In essence, Holmes suggests that the law is fundamentally cynical; it merely provides explicit written standards that enable men to modify their behavior for maximum personal gain. And because the law is cynical, so too are the men who empower it: They just want to enrich themselves.
Holmes calls such men "bad." But in fact, he just means "selfish." It is not necessarily morally "bad" to be selfish. But no one would dispute that "selfishness" is neither noble nor especially praiseworthy. No one remembers men who just want to remain free and make the most money they can. They are selfish; and the law exists for them. Bad or not, the law advances an entirely selfish view of human nature. And there is nothing really wrong with that, because the law holds power over money, property and bodily comfort. Those are selfish men's concerns.
If the law only serves "bad men," where does that leave the "good men?" Holmes draws an important distinction here that mirrors the distinction between law and ethics. He says the law stands for selfish men and their petty motivations, not men who find "reasons for their conduct…in the vaguer sanctions of conscience." By that reasoning, "good men" must have nobler motivations than property acquisition and freedom from jail. "Good men" must craft their lives to follow the "vaguer sanctions of conscience," not just cynical legal commands. In essence, then, "good men" are ethical. Unlike law, ethics is internal. It depends on conscience. An ethical man looks within his own heart to know whether something is right or wrong, not a statute book. He does not exploit ambiguity to slither away from consequences. That is noble and "good."
Does this mean that a person who depends upon his own conscience has no place in the law? It almost appears so. After all, to properly serve the law, one must be cynical. One must look at it as a "bad man." If the law enshrines the "bad man's" motivations, then conscience apparently has no place in it. An ethical man might be cynical about others' motivations. But he will not always act cynically. True allegiance to the law, however, requires constant attention to cynical concerns. Litigants would not win their cases if they suddenly started following their own conscience rather than their hunger for money. If ethics means allegiance to conscience and "higher" motivations than the body and property, then it really has little place in the law. Holmes said as much.
Later in my casebook, I ran across an article that criticized Holmes' "bad man" argument. See William H. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 29. In it, Professor Simon contended that Holmes' cynical conception about law compromised clients' "individual dignity" and "personal autonomy" because it required lawyers to assume that all clients have the same ends: Property and bodily comfort. The professor found it distressing that the law induces lawyers to both presume what clients want and "to lobby for a peculiar theory of human nature." Id. at 30-52. He found it lamentable that the law basically reduces "individual clients" to one-dimensional "hypothetical people" with a "few crude ends," namely "maximization of freedom of movement and the accumulation of wealth." Id.
I strongly disagree with this critique. First, while I agree that human individuality is precious, a person cedes any claim to uniqueness the moment he seeks legal redress. When a person invokes the law, he is not trying to soothe his conscience or prove his individuality. Rather, he is trying to win as much property as possible or to avoid going to prison. No matter what a client says, "justice" and "right" are not the main objects for his decision to take legal action. He takes legal action because he seeks to gain what the law can offer. The law does not offer abstract justice or right. It offers property and freedom from bodily restraint. This is all a person can hope to win from legal intervention. It is sheer ignorance--or sheer delusion--to believe it can deliver anything else. Courts do not award "good feelings" or a "sense of justice" with their rulings. No, they enter judgment in particular monetary amounts. If a client wants a spiritual reward, he should go to a church, not a lawyer's office.
Second, there is nothing wrong with imputing goals to a client. The law is not about conscience. It is not about ethics. There is a reason courts are called "Courts of Law," not "Courts of Ethics" or "Courts of Conscience." Clients could rightly complain about sacrificing their individuality if they sought to voice their conscience or their ethics. But when they file suit in a law court, they necessarily subscribe to far baser values. The law can deliver only money or bodily freedom. There is nothing wrong with imputing those base goals to a client, because those are the only things he can hope to gain from the law. If this renders lawyers "lobbyists for a peculiar view of human nature," it is not the lawyer's fault. It is the law's fault. The law is about cynicism, not conscience.
That is why the law really does exist to serve "bad men." And that is also why "good men" have little place in it. Once conscience enters the picture, law supplies no answer. Only ethics can appease the conscience.
Consequently, ethics and law do not mix. I don't care what any Bar Association, court or law professor says to the contrary. Law is external compliance. Ethics is conscientious belief.
And law cares not a fig for either conscience or belief.
Over the last few days, I have been paging through my old law school ethics casebook, The Law and Ethics of Lawyering (Foundation Press 4th Ed. 2005). When I took this course in law school, I immediately recognized it was different. No other course investigated ethical quandaries in law practice. Sadly, our professor seemed less concerned with the abstract philosophical dimension to the course than with its technical aspects. After all, it is hard to get lawyers to understand ethics because lawyers understand law.
Contrary to popular belief, law and ethics are distinct from each other. Ethics are internal, subjective conceptions concerning the "right" decisions to take in life's ever-changing circumstances. Ethics depends on individual conscience. Law, by contrast, is nothing more than an official collection of written rules that a State formulates to govern external behavior. Law does not require conscience; it requires only technical compliance.
Applying these definitions, it is easy to see that a person can act legally without being ethical at all.
I have written at length about the incongruous relationship between ethics and law. The relationship is uneasy not just because ethics and law stand at opposite philosophical poles. Rather, the relationship is doubly uneasy because "lawyering" in America is adversarial. It is hard to adhere to ethical norms when you are constantly trying to "beat" your opponent and win money. By the same token, American lawyering is extremely commercial. Successful lawyers win their cases because they want to make money. This makes them "result-oriented." That's bad for ethics because ethics is less concerned with results than with means. An ethical person refuses to act in certain ways or even conceive certain actions. Put another way, ethics disqualifies particular means from consideration. Yet a "result-oriented" person--like the average American lawyer--refuses to take any means off the table. When you want to win, you don't refuse to play all your cards.
Yet this is how lawyers must think. After all, they serve the law, not ethics. The law prescribes conduct through language. Lawyers advise clients how to exploit ambiguities in language to avoid the law's reach. All language is imperfect. The law is no exception. Lawyers seize on the law's linguistic imperfections every day to make a living. How can ethics survive in an atmosphere where everyone just wants to game the system?
Sure, lawyers all must take "ethics courses" just like I did. But teaching "ethics" to a lawyer is something like teaching dining room etiquette to a wild animal. Law students take the ethics course because they must: It is required to graduate. And even then, most students view the course as a meaningless formality. Rather than using the course to cultivate ethical sensibilities and become "ethical people," they learn how to read "official ethics rules," then tailor their behavior to avoid censure from professional boards. In essence, then, the "ethics" course devolves into yet another course on law: How to read written standards and make arguments designed to exploit weaknesses in language.
But I am not your average guy. I might have done well in law school, but I hesitate to call myself a "lawyer." No, I am too interested in theory to be a lawyer. I am too interested in ideas and philosophy to blindly advocate a client's selfish financial interests until I die or retire. Put simply, I think deeply about the law and its relationship to civilization. That disqualifies me from everyday "law practice." My commitment to theory might drastically reduce my income. But it dramatically increases my understanding about the world we inhabit.
When I read text from my old ethics casebook, I relate it to all my other ideas about law and civilization. Recently, for example, I re-read Oliver Wendell Holmes' musing on the lawyer's role in American society. He said: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good man, who finds his reasons for conduct, whether inside the law or out of it, it the vaguer sanctions of conscience." The Path of the Law (1920) at p. 169.
Holmes' remark closely tracks my own views about the law and human nature. In short, Holmes understands that the law essentially serves "bad men" who just want to know whether they will lose their bodily freedom or their money, not "good men" who seek answers in the "vaguer sanctions of conscience." In essence, Holmes suggests that the law is fundamentally cynical; it merely provides explicit written standards that enable men to modify their behavior for maximum personal gain. And because the law is cynical, so too are the men who empower it: They just want to enrich themselves.
Holmes calls such men "bad." But in fact, he just means "selfish." It is not necessarily morally "bad" to be selfish. But no one would dispute that "selfishness" is neither noble nor especially praiseworthy. No one remembers men who just want to remain free and make the most money they can. They are selfish; and the law exists for them. Bad or not, the law advances an entirely selfish view of human nature. And there is nothing really wrong with that, because the law holds power over money, property and bodily comfort. Those are selfish men's concerns.
If the law only serves "bad men," where does that leave the "good men?" Holmes draws an important distinction here that mirrors the distinction between law and ethics. He says the law stands for selfish men and their petty motivations, not men who find "reasons for their conduct…in the vaguer sanctions of conscience." By that reasoning, "good men" must have nobler motivations than property acquisition and freedom from jail. "Good men" must craft their lives to follow the "vaguer sanctions of conscience," not just cynical legal commands. In essence, then, "good men" are ethical. Unlike law, ethics is internal. It depends on conscience. An ethical man looks within his own heart to know whether something is right or wrong, not a statute book. He does not exploit ambiguity to slither away from consequences. That is noble and "good."
Does this mean that a person who depends upon his own conscience has no place in the law? It almost appears so. After all, to properly serve the law, one must be cynical. One must look at it as a "bad man." If the law enshrines the "bad man's" motivations, then conscience apparently has no place in it. An ethical man might be cynical about others' motivations. But he will not always act cynically. True allegiance to the law, however, requires constant attention to cynical concerns. Litigants would not win their cases if they suddenly started following their own conscience rather than their hunger for money. If ethics means allegiance to conscience and "higher" motivations than the body and property, then it really has little place in the law. Holmes said as much.
Later in my casebook, I ran across an article that criticized Holmes' "bad man" argument. See William H. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 29. In it, Professor Simon contended that Holmes' cynical conception about law compromised clients' "individual dignity" and "personal autonomy" because it required lawyers to assume that all clients have the same ends: Property and bodily comfort. The professor found it distressing that the law induces lawyers to both presume what clients want and "to lobby for a peculiar theory of human nature." Id. at 30-52. He found it lamentable that the law basically reduces "individual clients" to one-dimensional "hypothetical people" with a "few crude ends," namely "maximization of freedom of movement and the accumulation of wealth." Id.
I strongly disagree with this critique. First, while I agree that human individuality is precious, a person cedes any claim to uniqueness the moment he seeks legal redress. When a person invokes the law, he is not trying to soothe his conscience or prove his individuality. Rather, he is trying to win as much property as possible or to avoid going to prison. No matter what a client says, "justice" and "right" are not the main objects for his decision to take legal action. He takes legal action because he seeks to gain what the law can offer. The law does not offer abstract justice or right. It offers property and freedom from bodily restraint. This is all a person can hope to win from legal intervention. It is sheer ignorance--or sheer delusion--to believe it can deliver anything else. Courts do not award "good feelings" or a "sense of justice" with their rulings. No, they enter judgment in particular monetary amounts. If a client wants a spiritual reward, he should go to a church, not a lawyer's office.
Second, there is nothing wrong with imputing goals to a client. The law is not about conscience. It is not about ethics. There is a reason courts are called "Courts of Law," not "Courts of Ethics" or "Courts of Conscience." Clients could rightly complain about sacrificing their individuality if they sought to voice their conscience or their ethics. But when they file suit in a law court, they necessarily subscribe to far baser values. The law can deliver only money or bodily freedom. There is nothing wrong with imputing those base goals to a client, because those are the only things he can hope to gain from the law. If this renders lawyers "lobbyists for a peculiar view of human nature," it is not the lawyer's fault. It is the law's fault. The law is about cynicism, not conscience.
That is why the law really does exist to serve "bad men." And that is also why "good men" have little place in it. Once conscience enters the picture, law supplies no answer. Only ethics can appease the conscience.
Consequently, ethics and law do not mix. I don't care what any Bar Association, court or law professor says to the contrary. Law is external compliance. Ethics is conscientious belief.
And law cares not a fig for either conscience or belief.
Monday, January 18, 2010
IS AMBITION A BAD WORD?
AN ESSAY
I am ambivalent about ambition. In America, people generally think that ambition is a good thing. It reflects the urge to "do better" and to "get ahead" in society, or in any competitive endeavor. It only makes sense that "ambition" finds a cozy home in America. After all, this country perpetuates a myth that "anyone" can succeed here as long as they work hard and persevere through difficulty. Ambition is all they need to force their way to the top.
Or, at least, that's what the myth says. In my experience, I have learned that success in America is not so simple. Many things can go wrong. Ambition alone will not deliver success. Some people are born into the wrong families. Some suffer accidents and mishaps. Others just lose interest. Often, it's not their fault that they fail. Chance and timing have a tremendous influence on success. Ambition alone does not cut it.
Despite this, American mythology extols ambition. In most cases, Americans favorably use the word: "He is so focused and ambitious; he will be successful." Even those who already have achieved success say to others: "I was ambitious. I made it. You can, too." At funerals, eulogists sing hymns to ambition: "As a young man, he was so ambitious. He succeeded and he provided for his family." And some even equate ambition with progress. Abraham Lincoln alluded to ambition when he suggested awarding royalties to patent-seekers: "Patents add the fuel of interest to the fire of genius." Second Lecture on Discoveries and Inventions (1859).
If ambition is so great, why am I ambivalent about it? I'm ambivalent about it because there is a very dark side to ambition that reflects fundamental problems in our society's values. Lincoln's quote provides a good introduction. He uses a "fire" analogy to describe ambition-fueled "genius." Ambition is like a flame that consumes the individual, driving him toward a coveted goal. The goal might not be praiseworthy at all, but the ambitious man will burn until he fulfills it. Ambition is consumptive. It overwhelms the individual. It makes him ruthless, unscrupulous and uncompromising. In short, it possesses him.
But consumptiveness is not the only thing that makes ambition problematic. It is also problematic because it has an exclusively external focus. Grammatically, ambition requires an object. In almost every case, that object is external "success." People are ambitious for fame, wealth, advancement, recognition, praise, influence and power. They want to be seen by others in a particular way, or they want to possess things that give them authority over others. To achieve these things, they must focus their energy outwardly. They need not look within themselves for strength or meaning. They do not even need to be true to themselves. No, their fulfillment comes from external success--and the tangible rewards it brings.
Ambition is about recognition. It is about the audience. After all, only the audience can decide whether to recognize the performer. And only the audience can give the coveted ovation.
Ambition bothers me because I believe that external success frustrates individual virtue. To win recognition, you need to play by others' rules. You even need to be unscrupulous. A truly ambitious person "stops at nothing" to achieve his goal. That makes it difficult for him to adhere to principles that would constrain his actions. Honor requires a person to think as much about how he achieves a goal as the goal itself. But ambition drives a person to disregard everything as long as he achieves the goal. In this sense, ambition and honor exclude each other. Virtue is honor. That is why ambition frustrates individual virtue.
Aristotle supports my position on this point. While analyzing the Spartan Constitution in The Politics, Aristotle strongly criticizes Sparta's legislative body--the Board of Elders--because election to the Board required ambition. See The Politics, Book II, ch. ix ¶1271a9. He writes: "[I]t is all wrong that a person who is going to be deemed worthy of the office should himself solicit it. Whether he wants it or not, the man to hold office is the man who is fit for it." Id. In other words, Aristotle found a flaw in Sparta's decision to entrust politicians with a choice whether to run for office, because only ambitious people would ever make that choice. For Aristotle, personal virtue was much more important than personal ambition. Only personal virtue makes a man "fit" for office--or any other honor in life.
This may seem unreasonable to a modern American reader. After all, we learn that ambitious people are the ones who make all the money and win all the success. To the American mind, it is only natural that the most ambitious man would nominate himself to hold political office. In America, personal virtue is irrelevant next to ambition. Personal virtue does not amass fortunes or start businesses; ambition does. In a strange transmutation, ambition became virtue in America. Ambition makes a man "fit," not adherence to metaphysical principles. The fact that only "really successful" people win high office reveals how strongly commerce has infiltrated American culture. Commerce has drowned all personal virtue. And it has supplanted honor with ambition as the most essential social characteristic.
In commercial America, people want power. It takes money to get power. And it takes ruthless ambition to make money in our brutally competitive free market system. In this environment, honor does not stand a chance. Ambition is the only thing that can steel men enough to survive it.
This is not a good development. When ambition overtakes honor in society, we can expect bad things. Aristotle warned about ambition in strong terms: "Yet the truth is that men's ambition and their desire to make money are among the most frequent causes of deliberate acts of injustice." The Politics, Book II ch. ix ¶1271a9.
Aristotle knew what he was talking about. He correctly equated ambition with "deliberate acts of injustice" because ambition necessarily overshadows honor. Honor imposes limits on the means by which people achieve goals. Ambition lifts those limits. When men no longer observe honor in dealing with others, they gladly commit injustice. Their burning desire to make money overwhelms all other considerations; results are everything. They are not afraid to bend rules, dissemble, exploit and cut corners to achieve the results they seek.
By contrast, an honorable man would refuse to do these things. He would insist on "justice." But in commerce, this places an honorable man at a material disadvantage; an honorable man will always lose to an ambitious one. An ambitious man does not tie his hands with "ethics;" he is not even afraid to fight dirty when he must. In the end, the ambitious man achieves the goal, wins the power and ultimately takes high office. When ambition leads to such tangible rewards, who wouldn't want to be ambitious?
Probably not many. Nonetheless, I venture that honor offers its own rewards. Success can be measured in ways beyond salaries and fame. Some success is purely internal. Some success flows from personal excellence and adherence to personal standards. Put differently, it can be rewarding to be ethical. Although ethics may impede ambition and external success, it leads to virtue. It may be an antiquated sentiment to say that success means being honorable. But I really think it does.
External success is overrated. I leave it to the ambitious to chase external recognition and rewards. For my part, I am content to live according to my own heart and my own principles. I strive to do wrong to no one, not to make a certain salary. I strive to help those who need it, not to win praises from a supervisor. I burn to express my own personality, not to tailor my speech for a money prize. Call me old-fashioned--or even antiquated--but honor is very important to me.
But I can't be ambitious for honor. True honor exists without a need for external recognition or reward. Honor does not bestow career advancement, at least not consciously. No, ambition only works for those who crave external rewards. By contrast, honor is an internal reward. It is inwardly fulfilling. As such, ambition will not help you find honor--or "achieve" it. In fact, while it may be an achievement to live with honor, there's no trophy or plaque to commemorate the day you became honorable.
That's what an ambitious person will never understand.
I am ambivalent about ambition. In America, people generally think that ambition is a good thing. It reflects the urge to "do better" and to "get ahead" in society, or in any competitive endeavor. It only makes sense that "ambition" finds a cozy home in America. After all, this country perpetuates a myth that "anyone" can succeed here as long as they work hard and persevere through difficulty. Ambition is all they need to force their way to the top.
Or, at least, that's what the myth says. In my experience, I have learned that success in America is not so simple. Many things can go wrong. Ambition alone will not deliver success. Some people are born into the wrong families. Some suffer accidents and mishaps. Others just lose interest. Often, it's not their fault that they fail. Chance and timing have a tremendous influence on success. Ambition alone does not cut it.
Despite this, American mythology extols ambition. In most cases, Americans favorably use the word: "He is so focused and ambitious; he will be successful." Even those who already have achieved success say to others: "I was ambitious. I made it. You can, too." At funerals, eulogists sing hymns to ambition: "As a young man, he was so ambitious. He succeeded and he provided for his family." And some even equate ambition with progress. Abraham Lincoln alluded to ambition when he suggested awarding royalties to patent-seekers: "Patents add the fuel of interest to the fire of genius." Second Lecture on Discoveries and Inventions (1859).
If ambition is so great, why am I ambivalent about it? I'm ambivalent about it because there is a very dark side to ambition that reflects fundamental problems in our society's values. Lincoln's quote provides a good introduction. He uses a "fire" analogy to describe ambition-fueled "genius." Ambition is like a flame that consumes the individual, driving him toward a coveted goal. The goal might not be praiseworthy at all, but the ambitious man will burn until he fulfills it. Ambition is consumptive. It overwhelms the individual. It makes him ruthless, unscrupulous and uncompromising. In short, it possesses him.
But consumptiveness is not the only thing that makes ambition problematic. It is also problematic because it has an exclusively external focus. Grammatically, ambition requires an object. In almost every case, that object is external "success." People are ambitious for fame, wealth, advancement, recognition, praise, influence and power. They want to be seen by others in a particular way, or they want to possess things that give them authority over others. To achieve these things, they must focus their energy outwardly. They need not look within themselves for strength or meaning. They do not even need to be true to themselves. No, their fulfillment comes from external success--and the tangible rewards it brings.
Ambition is about recognition. It is about the audience. After all, only the audience can decide whether to recognize the performer. And only the audience can give the coveted ovation.
Ambition bothers me because I believe that external success frustrates individual virtue. To win recognition, you need to play by others' rules. You even need to be unscrupulous. A truly ambitious person "stops at nothing" to achieve his goal. That makes it difficult for him to adhere to principles that would constrain his actions. Honor requires a person to think as much about how he achieves a goal as the goal itself. But ambition drives a person to disregard everything as long as he achieves the goal. In this sense, ambition and honor exclude each other. Virtue is honor. That is why ambition frustrates individual virtue.
Aristotle supports my position on this point. While analyzing the Spartan Constitution in The Politics, Aristotle strongly criticizes Sparta's legislative body--the Board of Elders--because election to the Board required ambition. See The Politics, Book II, ch. ix ¶1271a9. He writes: "[I]t is all wrong that a person who is going to be deemed worthy of the office should himself solicit it. Whether he wants it or not, the man to hold office is the man who is fit for it." Id. In other words, Aristotle found a flaw in Sparta's decision to entrust politicians with a choice whether to run for office, because only ambitious people would ever make that choice. For Aristotle, personal virtue was much more important than personal ambition. Only personal virtue makes a man "fit" for office--or any other honor in life.
This may seem unreasonable to a modern American reader. After all, we learn that ambitious people are the ones who make all the money and win all the success. To the American mind, it is only natural that the most ambitious man would nominate himself to hold political office. In America, personal virtue is irrelevant next to ambition. Personal virtue does not amass fortunes or start businesses; ambition does. In a strange transmutation, ambition became virtue in America. Ambition makes a man "fit," not adherence to metaphysical principles. The fact that only "really successful" people win high office reveals how strongly commerce has infiltrated American culture. Commerce has drowned all personal virtue. And it has supplanted honor with ambition as the most essential social characteristic.
In commercial America, people want power. It takes money to get power. And it takes ruthless ambition to make money in our brutally competitive free market system. In this environment, honor does not stand a chance. Ambition is the only thing that can steel men enough to survive it.
This is not a good development. When ambition overtakes honor in society, we can expect bad things. Aristotle warned about ambition in strong terms: "Yet the truth is that men's ambition and their desire to make money are among the most frequent causes of deliberate acts of injustice." The Politics, Book II ch. ix ¶1271a9.
Aristotle knew what he was talking about. He correctly equated ambition with "deliberate acts of injustice" because ambition necessarily overshadows honor. Honor imposes limits on the means by which people achieve goals. Ambition lifts those limits. When men no longer observe honor in dealing with others, they gladly commit injustice. Their burning desire to make money overwhelms all other considerations; results are everything. They are not afraid to bend rules, dissemble, exploit and cut corners to achieve the results they seek.
By contrast, an honorable man would refuse to do these things. He would insist on "justice." But in commerce, this places an honorable man at a material disadvantage; an honorable man will always lose to an ambitious one. An ambitious man does not tie his hands with "ethics;" he is not even afraid to fight dirty when he must. In the end, the ambitious man achieves the goal, wins the power and ultimately takes high office. When ambition leads to such tangible rewards, who wouldn't want to be ambitious?
Probably not many. Nonetheless, I venture that honor offers its own rewards. Success can be measured in ways beyond salaries and fame. Some success is purely internal. Some success flows from personal excellence and adherence to personal standards. Put differently, it can be rewarding to be ethical. Although ethics may impede ambition and external success, it leads to virtue. It may be an antiquated sentiment to say that success means being honorable. But I really think it does.
External success is overrated. I leave it to the ambitious to chase external recognition and rewards. For my part, I am content to live according to my own heart and my own principles. I strive to do wrong to no one, not to make a certain salary. I strive to help those who need it, not to win praises from a supervisor. I burn to express my own personality, not to tailor my speech for a money prize. Call me old-fashioned--or even antiquated--but honor is very important to me.
But I can't be ambitious for honor. True honor exists without a need for external recognition or reward. Honor does not bestow career advancement, at least not consciously. No, ambition only works for those who crave external rewards. By contrast, honor is an internal reward. It is inwardly fulfilling. As such, ambition will not help you find honor--or "achieve" it. In fact, while it may be an achievement to live with honor, there's no trophy or plaque to commemorate the day you became honorable.
That's what an ambitious person will never understand.
Wednesday, November 25, 2009
INVESTIGATING PEOPLE IS AN UGLY BUSINESS, EVEN IF IT IS WELL-INTENTIONED
AN ESSAYYesterday I saw the movie Doubt. In it, Meryl Streep plays a cantankerous Catholic schoolmaster who is determined to unseat the new parish priest (Philip Seymour Hoffman) because she thinks he is abusing a troubled student. She has no direct evidence for her crusade. She has seen him hug the student in the hallway. But everyone else says there is nothing inappropriate about the relationship. The priest says that love is essential to the Christian spirit; he said he hugged the boy because he was enduring ridicule from classmates. In the end, the schoolmaster confronts the priest by claiming that she "spoke to his former parish" about his "history." This leads the priest to leave his post.
Ironically, the schoolmaster later admits to a friend that she never called the priest's former employer. The friend is horrified that her austere confidante would ever lie, even when pursuing a just end. She responds: "In the pursuit of wrongdoing, one naturally steps away from God."
What an incredible line. It made me think about proof and truth, as well as investigations into others' personal history. It also made me think about prosecutors. After all, prosecutions involve the "quest for truth" while "pursuing wrongdoing" through "investigation." Yet that quest--despite its good intentions--often leads prosecutors into serious ethical quandaries, just as it did to the schoolmaster in Doubt. And beyond ethics, investigating people for supposed "wrongs" often brings out the worst in everyone involved.
We all have histories. When someone wants to dig into them, he will always uncover something unpraiseworthy, embarrassing, scandalous or simply ugly.
Meryl Streep's character in Doubt represented a familiar "type:" The self-righteous investigator who wants to find evil in a person's past. Such types do not just appear in Catholic schools or District Attorneys' offices. Rather, they appear everywhere in our society. Whenever a person assumes a morally superior position above another and launches an "investigation" into that person for some "official" purpose, he or she effectively becomes the schoolmaster in Doubt. I have encountered them in private employment, in law practice, in academics and in State licensure boards. There is an inherent condescension in their work: They hold the power; they assemble the knowledge; and they pronounce a judgment on another person's history. All the while, they never acknowledge that they, too, may have "skeletons in the closet."
It is uncomfortable to undergo investigation. When I applied for admission to practice law in Illinois, I had to submit to a grueling "Character and Fitness" inquiry. For months, an entire committee combed through my past. They made me fill out an exhaustive "personal history" questionnaire in which I had to disclose all my addresses over the past ten years, as well as confess any disciplinary infractions, criminal convictions, criminal charges, debts and basically anything else "bad" I had done in my life up to that point. They also deeply wanted to know whether I had ever lied under oath or otherwise been "dishonest" when "investigated in an official capacity." Every question seemed to lay a trap: Should you answer fully? Should you answer everything? Should you try to get away with an omission? It was as if the committee wanted you to think they knew everything, but perhaps might overlook something. Every question radiated mistrust, as if inviting you to risk a lie. The whole process seemed designed to make you feel inferior and minuscule. It left you feeling like a specimen under a microscope. And it was your "character" on the block: You either had to confess or they would find out the "truth" by some other means.
Private employers do similar things when "vetting" potential employees. They want references. They want work history. They run credit checks and peruse public records. They compare your resume to other sources to see if you're lying. They even call former employers to get "outside impressions" about the "kind of person you are." Just as the Bar Committee ruthlessly investigates applicants, so too do private employers subject hopeful workers to a suspicion-laden process in an effort to "certify" them. They get to judge personal histories; it is a one-way street. They might be total scoundrels themselves, but they're not the ones applying.
But sometimes we need investigations, don't we? After all, we want to find out bad things about people so we can punish them, or at least prevent them from working, right? Of course we do. Still, that does not mean that investigations are noble. In fact, as the schoolmaster said in Doubt, the "pursuit of wrongdoing" moves us "away from God." In other words, it is somehow undignified to grub in the ground for bad facts about people. It leads to uncomfortable inconsistencies, awkward explanations and outright embarrassment. And taken to the extreme, it leads the investigator to employ dishonest means to accomplish his "honest" ends. Put simply, the quest to affix "truth" to an individual can quickly degenerate into an obsessive witch hunt. When that happens, we should wonder whether the value of "truth" about people is worth the ethical leaps we perpetrate to find it.
I mention all this because truth interests me. We cannot talk about investigation without talking about truth, because investigation aims to produce "truth." Yet it makes no sense to talk about truth without analyzing the concept. After all, truth is about human knowledge. Human knowledge, in turn, stems from human sense. There are comparatively few things in this world that an individual can sense, and those are the only things that he can really "know as true." We know the sky is blue because we see it; we know we are angry because we feel anger in our stomachs. But how do we know about others' pasts? We are limited to our own senses for knowledge and truth. If we do not see a person act "badly," what proves to us that they are truly "bad?"
Investigators set about assembling all the circumstantial facts that produce the impression that a person is "bad" or has "done wrong," even if we personally know nothing about it. That takes real effort--and it takes a lot of scavenging. That "scavenging" takes us "away from God." Scavenging is dirty; that's what pigs and vultures do. Yet this is also what investigators do, even when they have the best intentions.
Theologians say that only God knows the "truth" about other people. In that light, any human attempt to find it seems a hopelessly imperfect enterprise.
Leaving God to one side, modern-day investigations merely reflect power. The investigator sits back, asks questions, assembles facts and makes a judgment about a person based on his "past." The investigator has a past, too. But he need not answer for it. He's the one doing the investigating. He has his own truth; he keeps it comfortably concealed in his memory. But he gets to affix truth to someone else.
It is, after all, an immense power to declare the truth about others.
Friday, November 20, 2009
SHAME OR GUILT : WHAT'S THE DIFFERENCE?
AN ESSAY
I tried to answer this question during a conversation I had with one of my best friends. We often talk about philosophy and power, and we both agreed that "shame" and "guilt" are "kindred spirits." They are both strongly negative words. No one likes to feel guilty or shameful. They both imply that you have done "wrong." But are they really the same? That's the question.
Both "shame" and "guilt" flow from an acknowledgment of power. We only feel shameful or guilty when we recognize that we have failed to conform to a standard that we probably did not make. Someone else made the standard, someone we recognize as "superior" to us. In this sense, both guilt and shame emanate from below; the person who makes the rules that induce guilt or shame at most feels "disappointed" that his "subject" broke a rule. Shame and guilt, then, are for those who occupy an inferior power position. This is why Nietzsche called shame and guilt Sklavenmoral--Slaves' Morality. The rule-maker (or "master") does not feel them. Rather, he causes others to feel them because they do not adhere to his standards. They solidify his grasp over them.
But this does not mean that a single "superior person" causes others to feel guilt or shame. While a "superior person" may have originally laid down external standards, in most cases today external standards proceed from institutions. After all, power is deeply entrenched. It emanates from manifold places. It operates in virtually every conceivable manner, whether subtle or overt. Power radiates in families, in schools, in laws, in social settings and in professional relationships. It exists in commerce and in property. Most relationships involve a party with advantages and a party without them. That disparity provides an opportunity for dominance by one party over the other. And this is the setting in which guilt and shame flourish.
Guilt is more extrinsic that shame. Although both guilt and shame flow from an acknowledgment of power, the power that induces guilt is predominantly external. When we feel guilty, we feel bad because we know we have transgressed against some common rule or understanding. Our negative emotion springs from our awareness that we have violated an external expectation. This includes everything from the criminal law (an external authority about which we are conscious) to our parents (an external authority whose commands we respect). A person feels guilty when he steals or when he knowingly fails to attend a dinner he promised his parents he would attend. In both cases, the person knew he was obligated to do something by some external authority, yet he failed to adhere to the obligation. That conscious failure creates guilt.
With guilt, then, the inquiry is external. We feel guilty only when we acknowledge that some external authority holds power over us. When we break its rules, we feel guilt to the extent that we deviate from the "expected standard." Guilt requires an acquiescence to "superior" people or ideas. It necessarily makes the subject "inferior" to the standard he violates. And unlike shame, it can be objectively measured: The "superior" party can declare a subject "guilty" because the subject verifiably deviated from an external standard. This is why the law uses the term "guilt" rather than "shame." Guilt is a conclusion as well as an emotion. You just need to see whether a person met the standard.
Not so with shame. Although shame might feel similar to guilt, it flows from an entirely different conceptual source. Shame has internal origins. A person feels ashamed when he fails to meet a standard that he expects from himself, not a standard some external authority set for him. An external authority might encourage a person to expect certain behavior from himself. But in the final analysis, only an individual can decide whether to adhere to certain principles or beliefs. In this sense, shame intertwines with honor. An honorable person swears to himself that he will not act in a certain way to achieve certain results. He expects certain behavior from himself. He commits himself to certain principles and beliefs. When he fails to act in the way he expects, he feels shame, not guilt. He failed to meet his own standard, not an external one.
Consider a man who commits himself to respecting others and telling the truth. He makes these commitments because he personally believes that respect and truth are honorable principles. If one day he lies and disrespects a competitor to win a job, he deviates from his own standard. If he truly has honor, he would feel ashamed for breaking his own commitments to good principles. He might also be guilty of violating some external standard against perjury or untruthfulness, but that has nothing to do with his own internal transgression. And that internal violation creates shame. In short, shame is ethical (internal), while guilt is legal (external).
But shame still requires an "inferior" mental outlook. Although an honorable person decides for himself whether to believe in certain principles, in many cases he does not decide freely. The decision whether to believe certain things often depends on social circumstance and expectation. An external rulemaker has as great an interest in creating strong internal shame in his subjects as he does in crushing them under external guilt. A rulemaker wants his subjects to decide to believe in principles that could induce individual shame. All this inures to his benefit. For example, a person learns to believe that "it is good to respect private property." He also learns that it is "illegal to steal." If he steals something, he suffers both shame and guilt: On the one hand, he failed to meet his own internal standard about respecting private property; on the other, he knowingly violated the external command not to steal others' property.
Both emotions are negative. They flow from different sources. But in the end, they both serve to reinforce the "superior rulemaker's" control over his subjects. Guilty and shameful people are easier to manage than willful ones.
Shame seems purer than guilt. It is more individual than guilt because it depends on the individual's own moral ordering. But if a person's own moral ordering is not voluntary--and if individual moral ordering merely substitutes for external rulemaking--then the net effect of shame is no different than guilt: They both reinforce dominant values by inducing negative emotions in those bold enough to "transgress."
I tried to answer this question during a conversation I had with one of my best friends. We often talk about philosophy and power, and we both agreed that "shame" and "guilt" are "kindred spirits." They are both strongly negative words. No one likes to feel guilty or shameful. They both imply that you have done "wrong." But are they really the same? That's the question.
Both "shame" and "guilt" flow from an acknowledgment of power. We only feel shameful or guilty when we recognize that we have failed to conform to a standard that we probably did not make. Someone else made the standard, someone we recognize as "superior" to us. In this sense, both guilt and shame emanate from below; the person who makes the rules that induce guilt or shame at most feels "disappointed" that his "subject" broke a rule. Shame and guilt, then, are for those who occupy an inferior power position. This is why Nietzsche called shame and guilt Sklavenmoral--Slaves' Morality. The rule-maker (or "master") does not feel them. Rather, he causes others to feel them because they do not adhere to his standards. They solidify his grasp over them.
But this does not mean that a single "superior person" causes others to feel guilt or shame. While a "superior person" may have originally laid down external standards, in most cases today external standards proceed from institutions. After all, power is deeply entrenched. It emanates from manifold places. It operates in virtually every conceivable manner, whether subtle or overt. Power radiates in families, in schools, in laws, in social settings and in professional relationships. It exists in commerce and in property. Most relationships involve a party with advantages and a party without them. That disparity provides an opportunity for dominance by one party over the other. And this is the setting in which guilt and shame flourish.
Guilt is more extrinsic that shame. Although both guilt and shame flow from an acknowledgment of power, the power that induces guilt is predominantly external. When we feel guilty, we feel bad because we know we have transgressed against some common rule or understanding. Our negative emotion springs from our awareness that we have violated an external expectation. This includes everything from the criminal law (an external authority about which we are conscious) to our parents (an external authority whose commands we respect). A person feels guilty when he steals or when he knowingly fails to attend a dinner he promised his parents he would attend. In both cases, the person knew he was obligated to do something by some external authority, yet he failed to adhere to the obligation. That conscious failure creates guilt.
With guilt, then, the inquiry is external. We feel guilty only when we acknowledge that some external authority holds power over us. When we break its rules, we feel guilt to the extent that we deviate from the "expected standard." Guilt requires an acquiescence to "superior" people or ideas. It necessarily makes the subject "inferior" to the standard he violates. And unlike shame, it can be objectively measured: The "superior" party can declare a subject "guilty" because the subject verifiably deviated from an external standard. This is why the law uses the term "guilt" rather than "shame." Guilt is a conclusion as well as an emotion. You just need to see whether a person met the standard.
Not so with shame. Although shame might feel similar to guilt, it flows from an entirely different conceptual source. Shame has internal origins. A person feels ashamed when he fails to meet a standard that he expects from himself, not a standard some external authority set for him. An external authority might encourage a person to expect certain behavior from himself. But in the final analysis, only an individual can decide whether to adhere to certain principles or beliefs. In this sense, shame intertwines with honor. An honorable person swears to himself that he will not act in a certain way to achieve certain results. He expects certain behavior from himself. He commits himself to certain principles and beliefs. When he fails to act in the way he expects, he feels shame, not guilt. He failed to meet his own standard, not an external one.
Consider a man who commits himself to respecting others and telling the truth. He makes these commitments because he personally believes that respect and truth are honorable principles. If one day he lies and disrespects a competitor to win a job, he deviates from his own standard. If he truly has honor, he would feel ashamed for breaking his own commitments to good principles. He might also be guilty of violating some external standard against perjury or untruthfulness, but that has nothing to do with his own internal transgression. And that internal violation creates shame. In short, shame is ethical (internal), while guilt is legal (external).
But shame still requires an "inferior" mental outlook. Although an honorable person decides for himself whether to believe in certain principles, in many cases he does not decide freely. The decision whether to believe certain things often depends on social circumstance and expectation. An external rulemaker has as great an interest in creating strong internal shame in his subjects as he does in crushing them under external guilt. A rulemaker wants his subjects to decide to believe in principles that could induce individual shame. All this inures to his benefit. For example, a person learns to believe that "it is good to respect private property." He also learns that it is "illegal to steal." If he steals something, he suffers both shame and guilt: On the one hand, he failed to meet his own internal standard about respecting private property; on the other, he knowingly violated the external command not to steal others' property.
Both emotions are negative. They flow from different sources. But in the end, they both serve to reinforce the "superior rulemaker's" control over his subjects. Guilty and shameful people are easier to manage than willful ones.
Shame seems purer than guilt. It is more individual than guilt because it depends on the individual's own moral ordering. But if a person's own moral ordering is not voluntary--and if individual moral ordering merely substitutes for external rulemaking--then the net effect of shame is no different than guilt: They both reinforce dominant values by inducing negative emotions in those bold enough to "transgress."
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