Tuesday, November 29, 2005

The Anawim: Africa

From Harper's Index for March 2005:

"Number of new doctors sub-Saharan Africa would need for its per-capita number to match America’s: 3,900,000

Number of new doctors produced by sub-Saharan Africa’s universities each year: 4,000"

(Harper's Magazine, W
ednesday, April 6, 2005]

Wednesday, November 23, 2005

Support Our Troops (This Thanksgiving) and poetry from Mazisi Kunene to the Anawim of Iraq

Its thanksgiving in America. Let's never forget those who risked their lives to fight for our freedom:

"Speaking at the ACLU 2004 America at A Crossroads conference, New Yorker investigative journalist Seymour Hersh said that the US government has videotapes of boys being sodomized at Abu Ghraib prison in Iraq.

Said Hersh: "The worst is the soundtrack of the boys shrieking," the reporter told an ACLU convention last week. Hersh says there was "a massive amount of criminal wrongdoing that was covered up at the highest command out there, and higher."

Some of the worse that happened that you don't know about, ok. Videos, there are women there. Some of you may have read they were passing letters, communications out to their men. This is at Abu Ghraib which is 30 miles from Baghdad [...]

The women were passing messages saying "Please come and kill me, because of what's happened". Basically what happened is that those women who were arrested with young boys/children in cases that have been recorded. The boys were sodomized with the cameras rolling. The worst about all of them is the soundtrack of the boys shrieking that your government has. They are in total terror it's going to come out.

It's impossible to say to yourself how do we get there? who are we? Who are these people that sent us there?

He called the prison scene "a series of massive crimes, criminal activity by the president and the vice president, by this administration anyway�war crimes."


Hersh described the folks in charge of US policy as "neoconservative cultists" who have taken the government over, and show "how fragile our democracy is." (EdCone.Com, posted Wednesday, July 14, 2004).

The American General Antonio Taguba reported one of these incidents thus: a Military Policeman, he reports, was "having sex" with a female Iraqi detainee. Here are some testimonies given by Iraqi prisoners contained in Taguba's report:

Testimony of Kasim Mehaddi Hilas, Detainee #151108, on January 18 2004:

I saw [name deleted] fucking a kid, his age would be about 15 - 18 years. The kid was hurting very bad and they covered all the doors with sheets. Then when I heard the screaming I climbed the door because on top it wasn't covered and I saw [name deleted] who was wearing the military uniform putting his dick in the little kid's ass. I couldn't see the face of the kid because his face wasn't in front of the door. And the female soldier was taking pictures. [name deleted], I think he is [deleted] because of his accent, and he was not skinny or short, and he acted like a homosexual (gay). And that was in cell #23 as best as I remember.

And another testimony provided by Thaar Salman Dawod, Detainee #150427, on January 17, 2004:

I saw lots of people getting naked for a few days getting punished in the first days of Ramadan. They came with two boys naked and they were cuffed together face to face and Grainer was beating them and a group of guards were watching and taking pictures from top and bottom and there was three female soldiers laughing at the prisoners. The prisoners, two of them, were young. I don't know their names.

(Via Lenin's Tomb blog, posted Sunday Nov. 20, 2004).

The U.S. government refuses to release the photographs and video tapes that depict what one Republican senator (himself privy to these images) described as scenes of "rape and murder." (Editor and Publisher, Sep. 29, 2005).

And for you, anawim of Iraq, Mazisi Kunene's poem, "Thought on June 26":

Was I wrong when I thought
All shall be avenged?
Was I wrong when I thought
The rope of iron holding the neck of young bulls
Shall be avenged?
Was I wrong
When I thought the orphans of sulphur
Shall rise from the ocean?
Was I depraved when I thought there need not be love,
There need not be forgiveness, there need not be progress,
There need not be goodness on the earth,
There need not be towns of skeletons,
Sending messages of elephants to the moon?
Was I wrong to laugh asphyxiated ecstasy
When the sea rose like quicklime
When the ashes on ashes were blown by the wind
When the infant sword was left alone on the hill top?
Was I wrong to erect monuments of blood?
Was I wrong to avenge the pillage of Caesar?
Was I wrong? Was I wrong?
Was I wrong to ignite the earth
And dance above the stars
Watching Europe burn with its civilization of fire,
Watching America disintergrate with its gods of steel,
Watching the persecutors of mankind turn into dust
Was I wrong? Was I wrong?

(Mazisi Kunene, The Penguin Book of Modern African Poetry, p. 360).

Tuesday, November 22, 2005

Deep Play: Notes on the Academic Cockfight

Just back from the National Communication Association convention. Terry Eagleton's observations seem somewhat apropos:

"There is nothing wrong with conferences, as long as one realizes that they are more anthropological rituals, at which the like-minded may gather for mutual recognition and consolation, than theaters for genuine learning. Conferences are liturgical celebrations, affirmations of solidarity, symbolic spaces for those who speak a language (whether of socialism or orthodontics) unintelligible to most of their fellow-humans, and who therefore need from time to time to relax with those of their kind, as a cross-dresser might feel the gathering urge to withdraw from the world of the bank or bakery and ease into a pair of corsets.


Those who speak regularly at conventions know just how unfathomable is the human capacity for misinterpretation. If your title is "Why We Must Smash Fascism," and your speech one luridly impassioned invective against it, there will always be somebody in the audience who will want to know why you are so soft on fascism. The person who came in half an hour late will imperiously demand to know why you failed to make a point which you made in your second sentence, while someone else will wonder aloud why, if you're so anti-bourgeois, you wear a suit and spectacles rather than dressing in cowhide and peering at the world through home-made lenses cut from discarded Guinness bottles on an antique lathe. If your subject is the poetry of Northern Ireland, some aggrieved audience member will inquire why you have been so churlishly silent about fin-de-siecle Bavarian orthopaedics. There is the chairperson who will introduce you by saying that you need no introduction, and who will bring the session to a close with some cack-handed joke based on a phrase plucked from your talk. Thus, if you have been speaking of the redistribution of income, he will suggest with heavy heartiness tha the audience now "redistributes" itself to the bar; if you mentioned exploitation, he will propose sardonically that we "exploit" our speaker no longer. These things are laws of nature, which no mere human agency can affect.


As conferences go, the Modern Language Association of America is in a class of its own, as twelve or fifteen thousand literary critics take over a whole complex of hotels. It is a unique sociological experience to be on an escalator with sixty other people all of whom know who Jane Eyre is. Security is tight, and I once found myself unable to get in to a paper I was giving. As Jacques Derrida speaks to the crowded ballroom of the New York Hilton about floating the signifier, gorilla-shaped guards frisk fresh-faced postgraduate students on the doors. The president of the association is allotted the Hilton penthouse, and has the privilege of occupying the bed in which, either consecutively or simultaneously, Madonna, Paul Newman, Mohammed Ali, Elizabeth Taylor and Brad Pitt have slept. It is an enviable reward for a lifetime of annotating Dante." (Terry Eagleton, The Gatekeeper: A Memoir, p.97-101).

Tuesday, November 15, 2005

Would that the Roman People Had A Single Neck....

It is rather outrageous that some have dared compare George Bush to Der Fuhrer. As every historian will tell you, it is simply, flatly, wrong to continue discounting the legacy of one Gaius Germanicus, popularly known as Caligula:

"Two Iraqi men who were arrested in Iraq in 2003 but never charged with crimes say that U.S. troops put them in a cage with lions, pretended to execute them in a firing line and humiliated them during interrogations at multiple detention facilities.

Sherzad Khalid, 35, and Thahe Sabber, 37, say they were brutally beaten over several months at U.S. facilities such as Camp Bucca, Abu Ghraib prison and another detention facility at the Baghdad airport. They said the abuse occurred when they were unable to tell U.S. troops where Saddam Hussein was hiding and did not know about weapons of mass destruction in Iraq.

The two men are plaintiffs in a lawsuit filed by the American Civil Liberties Union and Human Rights First against Defense Secretary Donald H. Rumsfeld and top military commanders in Iraq. The suit contends that U.S. policies during the war allowed abuse and torture. Both men say that they were tortured and degraded for months before they were released.

"That was a terrifying period for me," Khalid said through an interpreter yesterday, slowly recounting being shoved into a lion's cage at one of the presidential palaces in Baghdad three times before soldiers lined him up for a mock execution. "I was wondering if it could be real that the American army would act this way."
... (Josh White, "Abuse Included Use of Lions, Iraqis Allege," Washington Post, Nov. 15, 2005).

I know, I know, Caligula probably did not appoint his favorite horse to the Roman Senate, as is widely alleged by some historians. But don't you get it? Every good disciple has to surpass his mentor. Hence Michael Brown, FEMA boss.

Sunday, November 13, 2005

What Is It Like to Be A Bat?, Or The Evangelical Golden Rule

Stop the presses! Now its old news that God is an American evangelical, but we can now confirm that he gets his talking points from your everyday American right-wing fascist talk show host:

1. Exhibit A: Reacting to the passage of a ballot measure by San Francisco voters to prohibit military recruitment in public high schools and colleges, racist, sexist, and morally depraved talk show host Bill O'Reilly said:

"[I]f Al Qaeda comes in here and blows you up, we're not going to do anything about it. We're going to say, look, every other place in America is off limits to you, except San Francisco. You want to blow up the Coit Tower? Go ahead." (From the November 8 broadcast of Fox News' The Radio Factor with Bill O'Reilly).

2. Exhibit B: Reacting to the electoral defeat of school board members who favored the teaching of the neo-astrology known as "Intelligent Design," evangelical leader Pat Robertson said:

"I'd like to say to the good citizens of Dover: If there is a disaster in your area, don't turn to God. You just rejected him from your city. And don’t wonder why He hasn’t helped you when problems begin, if they begin. I’m not saying they will, but if they do, just remember, you just voted God out of your city. And if that’s the case, don’t ask for His help because he might not be there.” ( Robertson made his remarks on the Christian Broadcasting Network's "700 Club.").

Wednesday, November 09, 2005

Deep Play: Notes on the American Cockfight (With Apologies to Clifford Geertz)

Next week is the National Communication Association (NCA) convention and that means its time to wield my favorite footnote from Novick's classic book:

"The way in which substantive sessions were organized at meetings of the AHA [American Historical Association] was the best evidence that the ostensible purpose of the gathering was not taken seriously.

Typically there would be three tenuously connected papers, edited with
a cleaver so as to be (almost) deliverable in the alloted time. The shredded remnants were read aloud as rapidly as the speakers' lips and tongues could move, while pretending not to notice the chairperson pointing at the clock. There followed one or two "prepared" comments cobbled together at the last moment because the paper had only just arrived. Then, if time allowed, there would be a couple of usually rambling and off-the-point remarks from the floor. The conclusion was often a plea to the audience (friends and family of the speakers, those on the search committees sampling the merchandise, and a collection of incurable innocents in search of enlightenment) to exit the room as rapidly as possible because the hotel staff had to arrange it for a luncheon now overdue. If there is exaggeration in this description, it is slight; if there are exceptions, they are rare."

[Peter Novick, The "Objectivity Question" and the American Historical

Profession, p. 580].

AHA/NCA... Seen one, seen 'em all.

Tuesday, November 08, 2005

Survival of the Not-So-Fittest

Kieran Healy of Crooked Timber reviews Janet Brown's Charles Darwin: The Power of Place. Brown draws attention to a little remarked pattern in the intellectual division of labor:

"[Darwin] was also remarkably well-insulated from any other distractions. Within his home, at Down House, his wife and daughters made sure that he didn’t have anything much to worry about, and so his amazing capacity for driving, constant work could be brought to bear on the problem of evolution. This insulation was aided by the fact that he was comfortably well-off, of course, and further abetted by the physical illnesses—marked mainly by long periods of retching and vomiting—that afflicted him. Darwin suffered a great deal from these health problems, but it’s also clear that they buffered him against unwanted obligations of all sorts. Part of this was just a consequence of being sick, but often his (quite real) attacks came on him at just the right times. The Victorian tendency to build personal and even marital relationships out of chronic invalidism was well-represented within Down House." (Kieran Healy, "Darwin at Home," Crooked Timber, Nov. 4, 2005).

Tuesday, November 01, 2005

One-Dimensional Man : Studies in the Ideology of American Society (With Apologies to Herbert Marcuse)

Excerpts from Larissa MacFarquhar's profile of Richard Posner, judge on the Seventh Circuit Court of Appeals, and (in)famous public intellectual:

"In hearing a case, [Posner] doesn't first inquire into the constricting dictates of precedent; instead, he comes up with what strikes him as a sensible solution, then looks to see whether precedent excludes it. In 1991, he ruled that a group of deputy sheriffs who, without a warrant or probable cause, assisted with the seizure of a mobile home had not violated the Fourth Amendment because, rather than entering the house, they had removed it whole. (This finding was reversed unanimously by the Supreme Court, whose sarcastic opinion called it "creative.")

"He relishes facts, the more obscure and Counterintuitive the better, but as rhetorical weapons rather than as data. His accounts of the world are sometimes so eccentric as to be almost Martian. He has argued, for instance, that a higher proportion of black women than white women are fat because the supply of eligible black men is limited; thus, black women find the likelihood of profit from an elegant figure too small to compensate for the costs of dieting. As John Donohue, a law professor at Stanford, delicately puts it, “A little bit of empirical support goes a long way for him."


"[In his book "Sex and Reason," Posner] speculated, for instance, that high heels were considered sexy because they suggested that a Woman was incapable of running away from her spouse-while others were contentious, such as his suggestion that normal men would rape women and seduce children if there were no laws against it (it's the ones who do it in spite of the risk of punishment who are the real weirdoes). One of his most controversial recommendations was that the current adoption system be replaced by a free market in babies, which, he maintained, by offering financial incentives to biological mothers, would make both would-be parents and potential sellers better off. In "Sex and Reason," he explained that he was advocating not the selling of babies so much as the selling of parental rights - he was not, after all, suggesting that babies be sold as slaves or organ donors - but the clarification did not, somehow, have the impact of the original argument, and "baby-selling" has since become one of the primary slogans of his notoriety.

"Sex and Reason" exhibited in a particularly colourful fashion one of Posner's ongoing contradictions-that between his libertarian instincts and his attraction to the practical straightforwardness of utilitarianism. On the one hand, he declares himself a liberal of the nineteenth-century ilk - a view he summarizes, paraphrasing John Stuart Mill (in a phrase that takes on a certain je ne sais quoi in a book about sex), as "Your rights end where his nose begins." On the other hand, he argues that people's moral beliefs are the product of intractable emotions like sympathy and disgust, and so those emotions must be taken into account in a calculation of social welfare. "Disgust when sufficiently widespread," he writes, "is as solid a basis for legal regulation as tangible harm." Thus, while he talks admiringly of anti-moralistic sexual mores in Sweden, at the same time he argues that the practical fact that homophobia exists in the military is a compelling reason to exclude gay people.

In "Sex and Reason," Posner was interested in conscious sexual choices, but he is also committed to a theory of unconscious rationality: socio-biology. He is a thoroughgoing Darwinian, and believes that many of the social and moral ideas commonly held to be cultural are in fact traceable to the dictates of reproduction. He subscribes to the idea, for instance, that altruism derives from the evolutionary imperative to perpetuate one's genes by taking care of those who share them. This coheres nicely with his general economic approach. As he puts it, "Economic theory is closely related to the theory of evolution... . Evolution deals with unconscious maximizers, the genes; economics with conscious maximizers, persons.

Sociobiology might seem to be an odd idea for a libertarian to be attracted to-most libertarians are committed, after all, to the idea that human choices are freely made rather than determined by forces beyond conscious control - but Posner does not feel a sentimental attachment to the idea of freedom. He is a libertarian of an instrumental, utilitarian sort: he simply believes that libertarian policies, in social life as in markets, will tend to maximize wealth and happiness. Liberty; for him, is a pragmatic principle, not a moral one.


Posner loves cute animals of all kinds, except dogs. He dislikes dogs partly out of a sense of duty-he feels that, given his commitment to cats, it would not be quite proper for him to like dogs as well. But it is also the canine personality that he finds distasteful. Years ago, when he and Charlene lived in Washington, they owned a Norwegian elkhound of servile disposition, poignantly misnamed Fang; whenever anyone evinced the slightest displeasure with him, Fang's lips would tremble with anxiety, and Posner found this irritating. Posner is an ardent fan of monkeys, his instinctive attraction perhaps bolstered by his socio-biological sense that monkeys are basically humans with fewer affectations. A couple of years ago, he watched a nature program about baboons, and found them so delightful that he decided to call the zoo and adopt one.


Posner doesn't like to waste time, so he sticks to a routine (he calls himself "rigid and Germanic"). But it is not just his regular habits that allow him to be as productive as he is: he has structured his life so as to free his mind from any distractions whatsoever. Charlene is in charge of all the domestic arrangements: Posner describes their relationship as the traditional Jewish one, in which the pasty-faced scholar husband stays home and studies while the wife attends to worldly activities. Until a few weeks ago, Posner had never used an A. T.M.-when he needed cash, he took it from Charlene's wallet.


Posner is content, as it happens, but content isn't what he set out to be. One reason he could never be a liberal (in the current sense of the word) is that, like many conservatives, he finds the idea of ordinary happiness uninspiring. He has no interest in a politics whose goal is to give people shelter and enough to eat. He loves fierceness and glory and heroism. When he looks into the future, he sees a rationalized, disenchanted world-a Scandinavian-style utopia in which people are dull and sated and genius has disappeared from the earth. "No sane person," he says, "not even I, would, for the sake of aesthetics, try to restore the Athenian slave state, the High Renaissance, the Russian Revolution, world wars, et cetera. The price is too high. But life will lack risk and savour."

Posner grew up in New York - first in Manhattan and then in Scarsdale. His mother's relatives were Jews from Vienna who looked down on his father's family, which was from Romania and poorer than they were. "They were all poor, Posner says, but my mothers family had toilet paper, and my father's family had newspaper." His mother was a Communist and was friendly with the family that adopted the Rosenberg children. The day Stalin died was a day of mourning in the Posner household. Posner's mother taught in the New York City public schools. His father had a chequered career: as a young man, he worked in a jewellery business with some cousins; then, having attended law school at night, he became a criminal-defence lawyer. After the Second World War, he became a moneylender, specializing in second mortgages in New York slums; he was so successful at this that he bought a Cadillac and, in 1948, moved his family to Scarsdale.

When Posner grew more conservative (he thought of himself as a liberal until he was thirty or so), his mother was horrified. "We had terrible fights," he says. "I became really furious at her. See, she was one of these bright fools, my mother-quite a bright person, but very limited. The other thing that annoyed me about her was that I worried about her politics interfering with my career. Every time I got a government job, I always felt obligated to tell the authorities that I had this mother who had probably been a Communist. It was an annoying piece of baggage. Then eventually she became senile and forgot about politics and actually became very benign. Both Charlene and I breathed a sigh of relief." Looking back on his red-diaper childhood, Posner considers his parents hypocrites. "It was just talk," he says of their radicalism. "They wanted me to live the same conventional life that they lived."

Both Posner's parents lived into their nineties. "My mother, in the course of her decline, broke her hip," Posner says. "In the olden days, people broke their hips and died, which was great; now they fix them." After his mother broke her hip, his father found it difficult to take care of her, so his parents moved to assisted-living facilities in Chicago. When his father grew very frail and sick, Posner asked the gerontologist what the point of keeping him alive with all these procedures was; the doctor informed him that termination of care had to be voluntary. "Because my father was more or less compos mentis and wanted treatment, you couldn’t deny it, Posner says. Growing up the way he did, struggling the way he did, the notion of giving up, not fighting to the end, was anathema to him. I hope my generation can be a little more rational about this. I'd like to choose my own time of exit.

"I don't know if this is true of everybody;" Posner says, "but I loved my parents when I was growing up and they were really the sort of parents you should be grateful to-my mother gave me great cultural enrichment, and my father helped me buy our first house, so they were ideal parents. But my thoughts about them are dominated by their old age. I don't make allowances: when I think about them, there's no affection. Charlene thinks I'm a little bit unnatural about my family. But so many people have these decrepit, horrible old parents, and then they're so upset when they die at ninety; and regard it as a medical failure that the doctors didn't do this and didn't do that. My father was even annoyed when my mother died-he thought the doctors hadn't tended her carefully enough-though by the time she died she couldn't speak, she couldn't use her hands, she wasn't human. And it's not as if you had a cute animal with the same mental ability-when you see human beings like that, you don't think, Well, she's on the level of a chipmunk." Asked what he felt when both his parents had died, he looked puzzled, as though the question didn't make sense to him. "I don't have any feeling about it," he said.


Posner is as much aesthete as analyst; more than a clever rebuttal he relishes mastery of tone. One of his favourite terms of abuse is "maladroit." He appreciates the lumbering, earnest activist only as a comic character, and he is positively allergic to rectitude. "Some people take pride in being 'good,' which is to say better than most other people," he writes. "But that is pride rather than morality. It is related to the striving for status."

What Posner really despises, though, is, as he sees it, the whining, sanctimonious pedantry of moral philosophers. Asking oneself whether one's beliefs are justified, he feels, is an esoteric, self-indulgent business, practiced only by those safely ensconced in tenure. Ordinary people are unreflective, simply believing whatever they believe; moreover, moral reflection has never persuaded anyone to change his mind or pursue one course of action over another, and thus is a deluded and useless activity. "Knowing the moral thing to do," he writes, "furnishes no motive, and creates no motivation, for doing it." (The contention that no one has ever been persuaded by a moral argument, and that non-philosophers never question their beliefs, strikes his philosophical critics as so obviously wrong that they have tended to throw up their hands rather than rebut it.) Posner contrasts the academic philosopher with what he calls "moral entrepreneurs,” such as Martin Luther King or the feminist Catharine MacKinnon (whom Posner admires despite disagreeing with her politics): those who, through sheer charisma and rhetorical force, sweep people headlong out of their accustomed inertia and inspire new moralities altogether.


Posner says that he has always liked Yeats because Yeats is a "full-fledged Nietzschean." Nietzsche is perhaps the philosopher who has had the deepest influence on Posner. Posner takes from him a conception of morality (made by humans, not found in the world), a conception of ethics (tenth-hand bromides, clung to by those lacking the courage or imagination to think for themselves), and, most of all, an intellectual temperament (delighting in muscular language and the power to shock). Explaining his attraction to Nietzsche, he says, "The idea - a bit banal, I'm afraid, when stated in summary form - is that a person is responsible for his own life. External forces and events are just the raw materials out of which we make a life, and we have no right to blame anyone else for the result because it was ours to make or muff This is a philosophy; or a psychology, basically optimistic, cheerful, and forward-looking, of self-assertion, of liberation from oppressive frameworks such as that created by religion or other dogmas."


Toward the end of the sixties, however, Posner began to move to the right, because he disliked the disorder of the student riots. Then, in 1968, while he was teaching at Stanford, he met two conservative economists from the University of Chicago, Aaron Director and George Stigler. Having been raised to believe that conservatives were evil, Posner was surprised to discover that he liked these economists. He concluded, first, that politics and personality had nothing to do with each other, and then, as he became more interested in economics, he found that he agreed with them. He moved to the University of Chicago the next year.


Posner's sense of the importance of legal rhetoric was rather more extensive, however, than that of the Scribes fellows nostalgic for a more ornamental era. In his book about the Bush-Gore election, for instance, Posner claimed that the main problem with the Supreme Court's decision favouring Bush was its rhetorical incompetence. It was the pragmatically correct verdict because it averted the danger of a political crisis, but the judges were at fault for failing to cloak their obviously pragmatic decree in convincing legal jargon. Posner delights in the brinkmanship of clever rhetoric. The trick, he feels, is to be as frank as possible about the pragmatic motives behind a decision, while clothing them in just enough formalist legal language to enable the decision to pass as a legitimate judicial move. In an ideal world, Posner believes, everyone would be as pragmatic about justice as he is, and judges would be able to be brazenly candid about their reasoning, as was his hero, Oliver Wendell Holmes; meanwhile, though, rhetoric is fun.

For the past ten years or so, Posner has called himself a pragmatist, meaning that he believes that there is no objective way to choose between incompatible moral positions. Pragmatism has a bracingly impious air that he finds exhilarating. "Politics is about enmity," he says. "It's about getting together with your friends and knocking off your enemies. The basic fallacy of liberalism is the idea that if we get together with reasonable people we can agree on everything. But you can't agree: strife is ineradicable, a fundamental part of nature, in storms and in human relations."

Posner likes to argue that judges do not confront moral issues-only questions of strategy. He claims, for instance, that in Brown v. Board of Education the Court made its decision against segregation on the purely instrumental ground that segregation had been found to injure black students' self esteem-though most people would view the decision that black self-esteem was a consideration of legal relevance as a moral one, and by no means uncontroversial in 1954. It is one of Posner's most persistent and confounding convictions that it is possible to practice a purely "pragmatic" jurisprudence. He argues that since there is no objective way to discover the definitive meaning of an ambiguous law, judges should ignore highfalutin morality talk and simply make decisions based on what is sensible and conducive to social welfare-disregarding the obvious fact that deciding what is sensible and conducive to social welfare is a controversial business in which moral principles are inevitably at stake. This problem has been pointed out to Posner many times, and he has conceded it many times, but he always slides back again into his old ways.

For years, Posner had no solution, but recently he has been reading Carl Schmitt, and he has now come up with one. Schmitt was an early-twentieth-century German political theorist who believed that there is no objective way to settle moral or political disputes because all beliefs are the beliefs of a particular Volk, or cultural group, and there is no such thing as a universal rationality capable of mediating between them. Schmitt concluded that the only way to insure stability was to extract from society people whose beliefs were incompatible with those of the majority, and he used this argument to support Nazism's expulsion of Jews from the judiciary. While this scandalous pedigree lends Schmitt's theory, for Posner, a certain frisson, Posner himself uses Schmitt's logic to argue for the opposite conclusions.

In the book that he is now writing, "Law, Pragmatism, and Democracy," Posner argues that, since America contains so many irreconcilable points of view, and since it is hopeless to try to assimilate these points of view into one harmonious legal philosophy, the solution is to insure that the different points of view are represented in different judges. (In this way, oddly, both

Schmitt and Posner are espousing a version of multiculturalism: they believe that different populations will always have different points of view, and that universal rationality is a myth.) One individual judge, Posner reasons, will never be able to put aside his personal disgusts and instincts, so the trick is to have lots of different judges whose instincts clash, and hope that, in the end, their views will cancel out in such a way as to approximate fairness. Of course, this is not a philosophy to comfort any particular defendant facing a hostile reception; but that, Posner believes, is just the nature of life in a diverse society, and covering it up with a lot of obscurantist talk about liberal principles will not, in the end, make any difference. (Larissa MacFarquhar, The New Yorker, Dec 10, 2001).