Presentation at 2013 Roberta Kevelson Seminar on Law & Semiotics VIth Roundtable

Every year, my distinguished colleague at Penn State, Jan M. Broekman, Professor Emeritus Universities of Leuven, Belgium, and Amsterdam, Netherlands, Honorary Professor National University of Argentina in Mar del Plata, Argentina, Visiting Professor University of Illinois College of Law (some of whose works are listed here), presides over The Roberta Kevelson Seminar on Law and Semiotics.   

(Pix (c) Larry Catá Backer 2012)

As part of that seminar, Professor Broekman organizes a wonderful Roundtable on semiotics and the law, featuring distinguished faculty and Penn State's law students.  On the 2012 Roundtable, see, Paper Delivered at the 2012 Penn State Law and Semiotics Roundtable: The Corporation as Semiosis, “Citizens United,” the Signification of the Corporate Enterprise and the Development of Law Law at the End of the Day, March 3, 2012; on the 2011 Roundtable see Larry Catá Backer, The 2011 Kevelson Workshop on Law and Semiotics at Penn State--Outstanding Student Presentations,  

Law at the End of the Day, April 11, 2011.

This year, Professor Broekman again organized a wonderful Roundtable for the Roberta Kevelson Seminar on Law and Semiotics.  The theme this year was "Legal Semiotics and Legal Practice."  This post includes the roundtable program and my own presentation, "Legal Semiotics and Political Practice: The Semiotics of a One-Party System", in outline form and PowerPoint presentation.

 (Jan Broekman)

The Conference Program:

 

The Roberta Kevelson Seminar on Law & Semiotics

VI Round Table 2013, March 1,

on

LEGAL SEMIOTICS & LEGAL PRACTICE

— Katz Hall, Carlisle, Room 104 —

9.30:  Arrival/Reception, Morning Coffee

10.00 – 10.10:  Jan M. Broekman: Introduction to the Round Table Themes

10.10 – 11.00: Philip T. Grier: Legal Consciousness Revisited

11.00 – 11.15: Coffee Break

11.15 – 12.00: E. J. Cyran & P. Van Fleet: Philosophy in Days of Legal Practice

12.00 – 12.30: Jan M. Broekman: Telling Boxes—Towards a Kevelson Archive

12.30 – 14.00:  Lunch in the Katz Hall

14.00 – 14.45: Larry Catà Backer: Legal Semiotics and Political Practice: The Semiotics of a One-Party System

14.45 – 15.30: Meghann Garrett: From Intellectual Property Attorney to In-House Council—A Change in Perspective

15.30 – 15.45: Tea/Coffee Break

15.45 – 16.45: Alan C. Green: Shareholder Derivative Action And Corporate Identity In Delaware Jurisprudence [Prize-Winning Essay of the 2012 Seminar, followed by a discussion about “writing a semiotic paper”]

16.45 – 17.30: Jan M. Broekman: General Discussion and Concluding Remarks

17.30: Round Table Adjournment

 (Pix (c) Larry Catá Backer 2012)

My contribution to the Roundtable 

Legal Semiotics and Political Practice, The Semiotics of Free Will in Single and Multi-Party Democracies
POWERPOINT PRESENTATION ACCESSED HERE

Outline:
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- It is common in the West to criticize single party states for political false consciousness

- Single Party states are said to betray the democratic ideal in fact even as they purport to embrace it in form

- the essence of the critique is grounded in the exercise of free will by individuals participating in states organized along a “mass democracy” line

- the essence of Western democracy, in whatever form managed (European versus U.S. style institutional organization), is the notion that individuals have a “liberty” to develop a differentiated and unique will which, when aggregated and expressed through voting (principally) or engagement (more subtle)

- the essence of Soviet democracy was grounded in a dictatorship of a proletariat led in turn by a Party elite that manages its cadres through the imposition of a Leninist democratic centralism in which the “Leader” assumes a paramount role and there is a conflation of politics and bureaucratization centered on Party organization, the consequences of which was to draw to the Party apparatus the entirety of discretion in political, administrative and economic affairs.

- Within this framework the individual will was subsumed under that of Party, and that of Party subsumed under its leadership without constraint.

- no voting as an expression of free will and less engagement

- The essence of Chinese democracy is grounded in a separation of political (the Party) and administrative (government) spheres, but in which the Party has oversight but not control of state apparatus and in which the Party itself is institutionalized with a push toward intra-party democracy guided by the Party line.

- individual will outside the party is severely constrained by the Party

- free will within the Party is constrained by the parameters of the normative system represented by the Party line

- severely constrained voting depending on status (Party-non- Party) and no possibility of forming opposing Party (with a small exception for United Front Parties)

- So in its essence, the question of the legitimacy of democracy is grounded in the possibility of a political consciousness that provides a particular expression of free will, principally through voting and engagement.


- But is it possible to exercise truly free individual will? 

- more specifically, the individual will that is at the heart of the presumptions of democratic states

- The exercise of individual free will standing alone and unaltered by its surroundings, the exercise of a will that proceeds outward from an autonomous individual is impossible

- An individual may make choices; but those choices are inevitably constrained by an inward projection of circles of collective will

- the interpretive universe within which he orders reality

- collective expression of will that is manifested in shared choices

- Yet collective will is also manifested as the outward expression of aggregated individual manifestations of adherence to collective will

-- the expression of will, then, becomes a self-referencing dynamic between individual, collective and outsider. Individual will is a manifestation of collective will with which it is in constant and reciprocal communication.

-- collective will constrains individual will but the aggregate of individual manifestation of will defines group will in a dynamic process

- This is particularly acute within political organization

- The expression of individual will can be understood as manifested as a constant stream of two choices

- contribute will to group
- not contribute will to group

- If contribute individual will to group then

A. Exchange individual for group will, that is individual no longer controls or manifest his own

- Will only his expression of group will to which he contributes (in it construction/expression) but which is not “his” or under his control

B. To speak of free will then is impossible because there is only group will individually manifested

- If not contribute individual will to group then

A. The character and manifestation of individual will is expressed in relation to:

1) groups

2) other individuals non-contributing will

This relation-to by non-contributing individual can take the following forms:

1) reaction against 

- join no group (but manifests against groups)

- move from one to another

- create connection (new group)

2) connection to - absorption into or reconfiguration or creation of new group

3) Development from – negative contribution; the dissenting voice

Unconstrained will is impossible because

1. It requires a purging of all relations from birth

2. If it could manifest it would be incomprehensible precisely because it was unrelated to any other will; the "thing in itself" is comprehended only by the self (its internal character cannot be manifested pristinely)

B. False free will and Rule of Law

→ the cult of personality within a group.

- Stalin and Soviet Communism

- Franco and fascist states

- Huey Long in the U.S.

- The development of the Chinese Communist party as institution and as group from the late 1970s suggest the notion. Democratization, including the institutionalization of rule of law systems, within the Party suggests the methodology and techniques of avoiding the individual.

→ A construct to justify discipline:

“The entire old psychology, the psychology of will, was conditioned by the fact that its originators, the priests at the head of ancient communities, wanted to create for themselves the right to punish — or wanted to create this right for God. Men were considered "free" so that they might be judged and punished — so that they might become guilty: consequently, every act had to be considered as willed, and the origin of every act had to be considered as lying within the consciousness (and thus the most fundamental counterfeit in psychologicis was made the principle of psychology itself ).” Nietzsche, Twilight of the Idols, The Four Great Errors, 7).

→ Antidote: Rule of law

- As a systemic concept in the West

- As a means of disciplining politics in China; Rule of law within the administrative apparatus distinguished from rule of law within the CCP architecture.

- rule of law abstracts the individual will becomes the grounding for social and political systems grounded in the aggregation of individual will with the construction of a group will that itself further abstracts the aggregate of individuals to separates the will expression from the individuals that may be the source of its expression.

C. To speak of free will here is also impossible/incomprehensible because expression of will is itself a collection or manifestation of relationship with or for other or collective expression.

-- will may exist in pristine form within an individual but its articulation and expression is necessarily relational and consequential to the group within which this expression of will is manifested.

- but isn’t the choice to join or not join or change groups the essence of free will? And the essence of democracy?

- difference between discretion-within-constraints as willed act and freedom of will :

- freedom is choice without constraint including (a) physical (b) technological (c) mental (d) spiritual (e) temporal

- But that is impossible from the moment of birth from which time a complex structure of dynamic relational structures are embedded

- the state of nature is itself internally contradictory. Every state of being, even a feral state , is itself marked by the constraints of the premises—identification of signs and interpretations, implying communication or reciprocal relationships even between sentient and inanimate objects – caused by being in the world.

-- the idea of the state of nature was not free for the assertion of a will, but rather “a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.” (John Locke Treatise on Government Bk II Chp 2 Para. 4; http://www.lonang.com/exlibris/locke/loc-202.htm), “The state of Nature has a law of Nature to govern it” (Ibid., para 6).

- This is an idea nicely captured by Benedict XVI in the notion of the historicity of Jesus, and therefore of religion. (Joseph Ratzinger, Jesus of Nazareth book)

- What we call free is actually discretion in bounded space, a space which is constrained by limited choice

- Choice is itself managed even more by the “home,” place and time of birth;

- free will is exercised only in relation to the spectrum of possible choices

- beyond that is the land of the “out-law” or the deviant

- feminist “false consciousness” is a variant of this will constraining framework

- Cultural semiotics (Geertz, The Interpretation of Culture) normative framework that manages how individuals see the world and interpret signs; that is how they should think, what they do, and how they should do it.

- everyone is born into and traded to and between groups. Birth is the ultimate constraint of free will


- but each of these constraint frames are themselves dynamic and grounded in constant interaction between thing, group, individual and networks

-This construct is replicated everywhere in human “nature”.

- politics, economics, law, philosophy, theology, science, sport

- each is grounded in the notion of individual manifestation, of choice, that proceeds outward from the individual autonomously of the group will around which it operates.

- but I have suggested that this manifestation is not autonomous of group will but intimately embedded within it, so that individual will can be understood as proceeding simultaneously inward to the individual and outward to the group

- The error of theory, then, especially political theory, is one of confusing individual will with the manifestation of will in the social context filtered through the constraints of the received structures within which reality is understood and actions interpreted and channeled.

--Two Points

1. This is not a reference to the general will or social contract of Rousseau and other Enlightenment figures, or to its transposition as Soviet doctrine of the state apparatus and the dictatorship of the proletariat, or the institutional interest theories of 20th century Western democracies (Dahl). There is no sense here that group will, like Rousseau’s general will, is somehow distinct from the self interest of an individual will. Rather, the idea is that individual will and group will are indistinct though an individual performance or manifestation of group will may vary from individual to individual.

2. The reality that individual will is constrained does not suggest that the constraining elements can be used instrumentally. The relationship between group and individual will is fluid and reciprocal. Group will constructs itself fro out of the aggregation of individual will that in turn manifests and by manifesting re-constructs the actuality of group will in any instant of time.

-- Consider the consequences for an understanding of voting within democratic societies:

- Voting or elections, then, are exercises of collective discipline that reinforces the relationship of the individual to the group

- Voters do not exercise free will so much as choice within the normative constraints of the group will

- Voting is a physical manifestation of individual adherence to the collective (as a performative act (“that reiterative power of discourse to produce the phenomena that it regulates and constrains” (Butler 1993 Bodies that Matter. On the Discursive Limits of Sex. London and New York: Routledge) or an expression (performed through physical acts that are signs of will interpreted in relation to the constraining parameters of acceptable choice) of allegiance to another (which can be compatible or incompatible with the group to which allegiance was formally owed – a revaluation of all values.

-- While this might produce a certain level of disillusionment, and perhaps spark a confrontation with the governance apparatus of the administrative state, on the part of voters at least, no such effect is discernible. Indeed, the opposite might be said to be true. Voting in political elections is more popular than ever and a number of regimes that have failed to conform to poplar assumptions about voting, have fallen in 2011 and 2012, including those of Arab/Berber North Africa and along the Saudi periphery. Let's consider briefly why that might be (this from Democracy Part XXVII--The Utility of Voting in the Shadow of the Administrative State, Law at the End of the Day, July 27, 2012).

1. Voting is a social act and an act of social discipline. In societies increasingly grounded in principles of mass democracy, voting represents a periodic affirmation of the legitimacy of the system and an act of political solidarity. Those acts may not be connected in any way to the policies and acts of political leaders in a micro sense--that is, voting cannot be understood as a ratification of specific acts of governance. That would be impossible in modern governmental systems where the connection between the masses and those charged with creating complex webs of rules is tenuous at best and most likely substantially unconnected. Instead, it represents a macro affirmation of the system and, as between candidates, of the generalized rhetoric for which each candidate serves as a mouthpiece. But it has another important purpose, one that was more visible in old fashioned Marxist-Leninist States (like Cuba and North Korea where virtually everyone is expected to vote) but which are also important in the most "advanced" Western democracy--voting serves as a disciplinary technique. Compulsory voting best evidences this disciplinary aspects.

Brazilian law requires that all citizens from the age of 18 – 70 are required to vote in the presidential elections held every 4 years. This has lead to a voter turn out averaging 85%, as opposed to 57% in the US and 59% in the UK. Those Brazilian’s who do not comply and participate in the process are subject to having their Titulo de Eleitoral (voting card) canceled.  (Philip Sever, 57,000 Voting Rights Revoked in Rio, Rio Times, May 12, 2009).  While states like Brazil engage in the social disciplining of the masses through affirmative obligations to vote, other states, like the United States, engage in a similar practice but in inverted form. The recent controversy over voter identification suggests that in states like the United States, it is the power of the state to deny the right to vote, rather than in the power of the state to compel voting, that the disciplinary functions of voting is articulated. See, e.g., Pennsylvania Voter ID Trial On Law's Constitutionality Begins, AP/The Huffington Post, July 25, 2012.

In states like China, voting acquires a dual character. It connects the masses to the administrative system of the state, and distinguishes voting to fill the governmental machinery, from participation in the organization of political power, which is left to the members of the Communist Party. Voting thus serves as a macro affirmation of the system and the performance of the distinction between administrative and political governance in China.

In any case, voting effectively serves as a physical manifestation of allegiance to and membership in the sovereign masses. Citizenship, then, is disciplined by an obligation to participate in elections that, in turn, are designed to affirm the legitimacy of the state apparatus which is meant to be the expression of the sovereign power of the people. There is a circularity here that works to the benefit of the state apparatus, and protects the fundamental disconnected between the masses, from whom all power flows, to the apparatus of government from where all power is exercised in intricate and substantially unaccountable ways. In managing the state, the state manages the mob!

2. Social Discipline Through Voting Manages Violence. Voting as a disciplinary technique is also deployed as a means of ensuring social stability. By encouraging the believability of the connection between accountability and voting, voting serves as a technique to reduce the potential of revolutionary action or violence. For those frustrated by the actions of the government apparatus, there is always the ballot box. That is so even when, in polarized societies grounded in principles of majority voting, it is unlikely that a minority will prevail. But even there a disciplinary consolation is offered--the minority can work hard to change the cultural foundations of the majority and on that basis prevail. That, certainly has been the case in the United States, where movements away from application of the death penalty, movements toward acceptance of sexual minorities in the military, and the regularization of their intimate relations, and other similar matters have been held up as examples of minorities group will moving slowly (over the course of more than one generation) to turn majorities. But there is a limit as well--cultural changes are tolerated only to the extent that they do not threaten the fundamental premises on which the state apparatus is founded. This is as true in Cuba ("within the revolution everything, outside the revolution nothing") as it is in Saudi Arabia ((secularization) and in the United States (socialism). It is the foundation of the distinction between administrative and political organization in China, where the Party in power serves as a manifestation of the outer boundaries of the manifestation of individual behaviors in relation to groups.

3. Voting Serves as a Measure of Governmental Legitimacy and Affirmation of Mass Democracy Grundnorm as a Basis of Political Organization. Here the focus is to outside stakeholders--the community of nations--rather than inside stakeholder (citizens). The state system increasingly has moved toward a harmonization of the parameters under which governments may be organized and respected. Transnational constitutionalism, whether conceived as international law or as a form of natural law based on unchanging principles of mass democracy as the sole organizing principle of states, suggests a set of norms that help structure the rules for determining the circumstances under which states may project power into the internal affairs of other states. See, Backer, Larry Catá, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008. The recent international intervention in Honduras (illegitimate "coup" and Libya "violence against citizens) provide contemporary examples. (e.g., Democracy Part XX: Democracy With or Without Elections in Honduras; On Intervention in Libya: The Emerging Nature of Supra-National Legal Framework/Norms for Disciplining States and their Leaders by Others). In a sense the dialogue between the West and China over the legitimacy of its constitutional system is rather one about the limits of allegiance to the group norms of democratic states.

4. Voting serves as a method of popular organization to support or undermine the state apparatus. The mass will tends to find of way of expressing itself, even as it is managed by those with the power and interest in that task. Mass organization tends to manifest itself within the social and political structures in place in the context in which it appears. Factional politics in ancient Greece, popular power disguised as Hippodrome parties in early Byzantium (Procopius, Secret History (Richard Atwater, trans., Ann Arbor: U. Michigan Press, 1966) (553 A.D.), religious parties in the Middle East and North Africa, and the like tends to mark social fissures. Voting tends to serve as a means of organizing oppositional parties in ways that make it harder for their opponents within the state apparatus to curtail. Voting, then, has strategic value as a means through which systemic opposition can be nurtured because the penalties for suppression exceed the risks of revolutionary change through policies of toleration. In this sense voting is useful--but not for the purpose of electing representatives or for holding the state apparatus accountable or even for political engagement within the state. Instead, it serves as a space for oppositional activity, including those that would replace the state apparatus itself.

5. The semiosis of voting. Voting, then, serves as affirmation of belonging, an acceptance of the basic premises of state organization, of obedience to its apparatus, and of the possibility of revolutionary change. Voting is object, sign, symbol and interpretant. Protean, it reflects the norms within which it is exercised and the techniques through which that exercise is legitimated. But voting has little to do with the rhetoric within which it is assembled for consumption by the masses and utilized by social managers. Voting, then, can be better understood as essential to the operation of the modern state within a community of states supporting a web of increasingly inter connected governments.

-- The semiosis of voting also can be understood as a proxy for the social construction of politics and its organization within states. Consider the consequences for an understanding of democracy

- Democracy might be understood as the manifestation of a cultivation of the opposite of free will – it is the substitution of individual manifestation of group will for what is impossible—an expression of unconstrained individual will

- unconstrained individual will, then, is “firstness”, that manifests only in relation to sign and interpretant, that is to a second and third.

--this is understood from the perspective of philosophy (Nietzsche); psychology (Freud); religion (Calvin, Catechism); and politics (Madison, Marx). Each, of course, goes in different directions.

--The semiosis of Nietzsche’s Twilight of the Idols, thus suggests the inversion of Madison’s Federalist No. 10 (on factions) and false causality Rousseau’s famous discussion of the general both of which confuse case and effect for the purpose of practical management under constraint.

Nietzsche: “The most ancient and enduring psychology was at work here: it simply interpreted everything that happened in the world as an act, as the effect of a will; the world was inhabited with a multiplicity of wills; an agent (a "subject") was slipped under the surface of events. It was out of himself that man projected his three most unquestioned "inner facts" — the will, the spirit, the ego. He even took the concept of being from the concept of the ego; he interpreted "things" as "being" in accordance with his concept of the ego as a cause. Small wonder that later he always found in things what he had already put into them.” (Nietzsche 1895, Die Götzen-Dämmerung (Twilight of the Idols), 4 Great Errors, Error of False Causality http://www.handprint.com/SC/NIE/GotDamer.html#sect6

Madison: On the one hand he notes: “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves.” Yet he also explains: faction as “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse t the rights of other citizens, or to the permanent and aggregate interests of the community.” (Federalist No. 10). Yet Nietzsche might suggest in Madison the error of mixing cause and effect; that is faction does not arise from differences in faculties, rather differences in faculties already inherent in society form the opinions, and factions, among which individuals sort themselves according to their interests.

--Marx and Calvin share the same understanding

Marx: “Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given and transmitted from the past.” – (Karl Marx, Frederick Engels, and V.I. Lenin, On Historical Materialism (New York, NY: International Publishers, 1974), 120 - http://www.allaboutworldview.org/marxist-history.htm#sthash.QzzxxgKR.dpuf).

Calvin: “we posited a distinction between compulsion and necessity from which it appears that man, while he sins of necessity, yet sins no less voluntarily. But, while he is bound in servitude to the devil, he seems to be actuated more by the devil’s will than by his own. . . . It is said that the will of the natural man is subject to the devil’s power and stirred up by it. This does not mean that, like unwilling slaves rightly compelled by their masters to obey, our will, although reluctant and resisting, is constrained to take orders from the devil. It means rather that the will, captivated by Stan’s wiles, of necessity obediently submits to all his leading.” (Calvin Institutes, Bk II, Chpt. IV para. 1).

-democracy can also be understood as the interpretive expression of that complicity between the individual and group will manifested in individual performance that in the aggregate reifies an otherwise abstracted group

- But that reification is dynamic and dependent on the continued closed loop, self- referencing, reinforcement between individual and group that both makes the group concrete and provides the basis for the expression of the individual will.

- To that end, voting is a performative manifestation, yet not the only one or the most important one;

- equally important is its manifestation in the party systems of single and multiple party democratic states.

- This suggests the reciprocity in relations between individual manifestation and group will and suggests that all despotism requires the complicity of those oppressed.

- Contra Spinoza who views complicity as a form of self deception: “the supreme mystery of despotism, its prop and stay, is to keep men in a state of deception, and with the specious title of religion to cloak the fear by which they must be held in check, so that they will fight for their servitude as if for salvation.” Tractatus Theologico.Politicus (1670)

- but it is also particularly potent in the development of political order

A. presupposes group will: mass democracy is another way of describing both the constraints of and confinement of individual will within a group. It supposes the possibility of choice only as individual manifestation or expression of group will which is in a fundamental sense not “his” will but that of the group. (Democrat v Republican; Federalist Papers No. 10)

B. Alternatively it is a manifestation or expression fundamentally in relation to a group and thus shaped and constrained by it (socialist or write in candidate)

C. Alternatively it is a manifestation, within the group, or the expressive range of another group. (Fundamentalist Christian voting in a secular state)

Once this is understood, the long advocated foundational distinctions between single party ad multi-party democracies fall away.

- Differences

- grounded in technique

- scope of group

- social relations (political vs. administrative apparatus)

- In this light we can reconsider Madison’s notion of free will and faction: “The inference to which we are brought, is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.

Multi-Party Democracy: 

- more factions and greater choice to avoid tyranny

-externalization of faction with social control

-each faction is legitimated only to the extent it remains true to the governing ideology articulated in the Constitution and through the courts.

-The Tea Party and the Republican Party

Single Party Democracy: 

- less faction and no choice to avoid tyranny

-internalization of faction and social control

-each faction is legitimated to the extent that it remains true to the governing ideology articulated through the foundational ideological basis of the legitimacy of the party (Marxist Leninist theory in China)

-Intra-Party Democracy and the State

-Bo Xilai and Xi Jingping

Conclusion

-I have suggested the difficulty of the traditional premises of democratic organization, grounded in the assumption of an autonomous will that may exist independent and sometimes adverse to a social political or general will.

- I suggested that individual will is incomprehensible apart from the group will from which it is nourished, generated, disciplined, and against which it might rebel.

- What we understand as the expression of individual will is better understood an an individual manifestation of group will.

- That manifestation is both derivative and communicative; it derives from the group will bit also communicates with it.

- the aggregation of individual manifestation moves group will, even as group will is necessary for the manifestation of individual will—a self-referencing relationship that is essentially dynamic.

-this is an especially potent insight in the construction of political organization

- democratic organization is grounded in this reciprocity and dynamism

- if that is so then the fundamental distinction between single party and multi-party states disappears

- the issue then becomes one of individual performativity within group will structures