Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

29 June 2014

Will Putin Trample Ukraine’s Garden?

    In England, if John grows a beautiful garden, his neighbor Clive will work until midnight to grow an even more beautiful garden. In Russia, if Boris grows a beautiful garden, his neighbor Ivan will come out at midnight and trample Boris’ garden, just to even things up. — Old Russian Joke
There are many such self-deprecating Russian jokes. They didn’t begin with Communism, and they didn’t end with its demise. As always, dark jokes like this one have more than a germ of truth.

And so it is with Ukraine. Petro Poroshenko, the Ukranian chocolate magnate whom Ukraine’s voters have entrusted with their future, is the gardener. He has what may be the second-hardest task on Earth these days, after Obama’s. He has to turn the weed field of corruption that Ukraine has become, and the battlefield in the East, into a lush garden fit for living well.

Last week Poroshenko made his first move. He signed the long-awaited and controversial preliminary agreement with the EU. Thus he signaled his intention to grow a European-style garden (and perhaps an English-style one, too, if the UK sticks with the EU).

The corrupt tyrant Yanukovych started all the trouble by refusing to take that simple step. But Poroshenko hardly crossed the Rubicon by taking it himself. His was a bare statement of intent, the merest of beginnings. Ahead lies the hard work of taming rampant corruption at all levels of government and business, learning real economics (as distinguished from the non-science of Marx, Engels, Lenin and corrupt siloviki), and enduring austerity and hardship accordingly.

In Soviet times, workers pretended to work, and their bosses pretended to pay them. Now Ukrainians are going to have to work as hard as the Japanese and South Koreans and let the global market take care of paying them.

So growing Ukraine’s garden will be no picnic. It will take at least a decade of hard work, rebuilding, retraining, rethinking and cooperating, on the part of all Ukrainians, whatever their primary tongue. Just ask the Greeks. Or, closer to home, ask the Germans about their reunification.

But Poroshenko has made his symbolic choice. He’s decided to follow the model of Western Enlightenment, including Magna Carta, which will turn 800 years old next year. He picked that model over the model of Russia, which is still extricating itself from the grip of authoritarian politics and a fictional economic system that it rejected less than 23 years ago.

No surprise there. Any rational leader, conscious of history and genuinely interested in his people’s welfare, would do the same. The hard part is not the choice, but explaining to Ukraine’s much-abused people how hard and steep the road ahead will be.

The next big question is what Putin will do. Will he become an Ivan, stalking out in the dark of midnight to trample Ukraine’s garden? Or will he become Enlightened and take the English approach? Will he help Ukraine become the garden crossroads of Europe that it once was and some day again may be?

Unfortunately, Putin started out toward trampling and extortion. He cut off natural gas to Ukraine—mercifully in summer, when industry, not ordinary people, will suffer. Then he cut back on the customs privileges that Russia, often begrudgingly, offers the peoples of its “near abroad.” Who does he think he is, John Boehner or Ted Cruz?

The purpose of these moves appeared more deterrent than punitive. Kiev hasn’t actually done much yet, other than decisively reject Yanukovych, run a difficult election, and try to keep Ukraine whole. Putin, apparently, wants to deter Kiev from oppressing the substantial Russian minority in the East—a proper and understandable motive. But apparently he also wants to deter Ukraine from becoming independent of Russia, whether or not that independence causes Ukraine’s garden to grow beautiful, and even to benefit Russia itself.

How would a businessman like Poroshenko handle this situation in Putin’s shoes?

Likely Poroshenko would do exactly the opposite. He would continue delivering gas to Ukraine. Perhaps he would raise the price a bit closer to global market levels. Doing so would encourage greater efficiency in Ukraine’s use of gas. It would also provide a clear warning of inevitable future market-accommodating price increases. The sooner both Ukraine and Russia start using markets to set prices, rather than secret political meetings and telephone calls, the better off both will be.

On customs and trade, Poroshenko would recognize Ukraine’s coming closer to the EU as an opportunity, not a threat. He would reduce, not increase, red tape, duties, tariffs and delays inside Russia. He would compete fiercely with the EU and its likely austerity package, trumpeting the ease and user-friendliness with which Russia’s government and businesses accommodate their Slavic colleagues. And he would take quick and decisive advantage of Ukraine’s increased trade with the EU, some of which will inevitably spill over into Russia.

In other words, like most business people Poroshenko, as Russia’s leader, would seize the chance to help its neighbor Ukraine grow a beautiful garden. Like every modern economist, he would recognize that trade, investment and development are not zero-sum games. They are win-win opportunities.

Unfortunately, despite all his brains and considerable education, including decades in the KGB, Putin appears to lack understanding in two key fields. First, he doesn’t understand the most rudimentary principles of real economics.

If you stop selling to an important customer, the unsold gas creates a surplus, which weighs on prices to other customers and prices globally. In addition, if you play politics with business, you sow uncertainty and get a reputation for being unreliable, encouraging customers to shop elsewhere.

Or you goad them to seek substitutes for your products. That’s what Germany is doing with its Energiewende: building an energy future on the sun and wind, not gas or coal.

Putin’s second failure of comprehension is hardly new. It runs through Russia’s history. From the Tsars through the commissars to Putin today, Russia (like China) has always preferred weak, helpless vassal states as neighbors to strong, healthy, independent states.

That’s precisely why Hitler was able to drive all the way to Stalingrad, and nearly take Moscow, despite the extremity of Russia’s people’s sacrifice, the bitterness of Russia’s winters, and Nazi overconfidence. Having poor, weak, downtrodden neighbors who hate and fear you is highly overrated as a predictor of national success.

Vladimir Vladimirovich Putin is a smart man. He’s undoubtedly one of the smartest leaders that Russia ever had. But staying ahead of others in what has been for centuries a backward country struggling to catch up is not as easy as speed-learning the lessons of half a millennium of Western Enlightenment and eight centuries of democratic struggle. Putin still has a lot to learn from the world outside Russia.

Can he do it? Maybe, with some help. He’s smart and he’s flexible. His massive troop movements now appear to have been nothing more than a warning, feint and deterrent. But now he has to cast his lot—and Russia’s—foursquare with the modern, global world, forsaking the awful lessons of the last century, which treated Russia and its people so horribly.

This is not the time for the West to threaten or bluster. Nor is it the time to impose crippling economic sanctions on Russia—as long as Putin’s words and acts stay peaceful and moderate. (Economic sanctions on individual troglodytes, including oligarchs, are always useful, especially when they crimp their corrupt and anachronistic styles.) Now is the time to goad, push, reason with, tempt, and (subtly) teach Putin and his colleagues.

Putin said he could trust and work with Poroshenko. That’s probably true, as both are realists and practical men.

So now’s the time for Poroshenko and his fellow Ukrainian oligarchs—as well as their Western business allies—to visit the Kremlin. Their briefcases should be full of business plans, not threats.

Now’s the time to show Putin, in dollars, cents and rubles, just how beautiful a garden Ukraine could grow with Russia’s help—and with the EU’s, too. Now’s the time to show Putin just how much Russia and its people would gain from restoring Ukraine to its ancient status as Eastern Europe’s crossroads and trading post.

Both carrots and sticks can be useful. The West, and Ukraine itself, must encourage and goad Russia and Putin to do the right thing. But so far, the goading has exceeded the encouragement. That must change. Putin should take the message once he sees a practical demonstration of how beautiful Ukraine’s garden could be.

After all, this is the same guy who, during his first term as Russia’ president, spoke before the Bundestag, in fluent German, about his dream of a peaceful trading zone from the Atlantic to the Urals. That Vladimir Putin is still in there somewhere, hiding behind the shadow of the cynical silovik that his public persona has become. Entice that Putin out, and much is possible. Doing profitable business (and increasing the tax base) is the thing with which to capture the conscience of the king.

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22 June 2014

Clear Thinking about “Terrorism”


[I hate to upstage yesterday’s post about Magna Carta’s 800th birthday, which has world-historical significance. But the following post has greater current importance, as we Yanks seek to address what is happening in Iraq right now.]

“Terrorism” is a miscreant word. If there were capital punishment for fracturing thinking, it would deserve it. The very word has subverted clear thinking for several decades.

Like a Frankenstein monster, it’s a combination of things that shouldn’t be stitched together. “Terror” is an emotion. But the ending “-ism” denotes a political philosophy, a school of thought, perhaps even a governmental or economic system.

What nonsense to hitch them together! Terror is not a philosophy, political or otherwise. It’s a strong emotion. It’s extreme fear. And fear, as Frank Herbert once wrote, is “the mind killer.” It hardly promotes thinking.

The consequences of the miscreant word’s overuse have been terrible. They include our own, unnecessary Yankee invasions and occupations of Afghanistan and Iraq—which incidentally began the two longest wars in our national history. They also include Assad’s transparently absurd “justification” for his genocide against non-Alawite Sunnis (among others). No, Bashar, all your enemies are definitely not terrorists; nor are all the innocent people you have slaughtered and displaced.

Sowing terror can be a tactic in military conflict. If you can get the enemy to fear you, stop fighting and flee, you can win a battle.

Terror can do that. ISIS/ISIL just recently showed us how, as it captured cities in middle Iraq by getting the Shiite Army, which was not fighting on its own turf, to flee. In a civil war or insurgency, terror can impede or prevent the formation of effective opposition.

But once the fighting stops or subsides, you have to organize and govern. Terror can help sweep away opposition, at least temporarily, as you do so. But in the long run, as you begin to govern, you have to have popular support. You can’t continue to kill or maim everybody who doesn’t think exactly like you, at least not without some sadly predictable consequences.

Terror doesn’t garner support. It makes enemies. Every time a suicide bomb goes off, for example, it kills lots of innocent people. But there are survivors. There are also friends and loved ones of the maimed and dead victims. These become your enemies.

In some Islamic societies, where the Code of Hammurabi still applies, a single act of terror can earn you scores of sworn enemies for life. The survivors take on killing you and yours as a sacred duty, a matter of personal honor and lifelong devotion. That, of course, makes it harder for you to govern, let alone to promote any real political or religious philosophy. Blood feuds are not the stuff of stable government.

This reasoning is not rocket science. It’s basic human nature. And its proof is no further away than the still-wet pages of recent history. Despite four decades of so-called “terrorism” (the misuse and overuse of terror as a military and political tactic), it has not yet created a single government anywhere in the world, let alone a stable or enduring one. Even Communism, a fictional economic theory imposed on unwilling people by tyranny, has done better than that.

Bin Laden, the paradigmatic terrorist, is dead. Why? Because people who hated him and despised his indiscriminate slaughter told us Yanks where he lived. Ditto al-Zarqawi, the brutal Iraqi terrorist, who is reputed to have founded ISIS/ISIL. Now al-Zawahiri, the still-surviving comrade of bin Laden and current apparent leader of Al Qaeda Central, has disowned ISIS/ISIL as too extreme to be an Al Qaeda affiliate.

His reasoning: extremism and random slaughter alienates, instead of drawing, popular support. Duh! Al-Zawahiri can reason this far because he’s one of the very few extreme Islamist leaders with a solid education: he’s a medical doctor.

Bin Laden had Saudi money and was a good propagandist. He turned the lemons of his complete military incompetence into lemonade by claiming that Allah had ordained his many narrow escapes from death.

But bin Laden was an abysmal strategic thinker. He wanted to topple the Saudi monarchy and so attacked us Yanks—the world’s only superpower—because he saw us as the linchpin of the House of Saud’s support. What he didn’t see was that we Yanks don’t control the Saudis; we just buy (or help them sell) their oil. He also didn’t see that many Yanks would also have liked to topple the House of Saud just as much as he did, if only we could do it without immense collateral damage and still keep the oil flowing. A cleverer man might have devoted his decades of effort not just to killing innocent bystanders, but to garnering and focusing Yankee support for his chief goal (a better Saudi Arabia).

That support might well have been forthcoming. It still might.

Contrary to popular Yankee fears and Fox demagoguery, “terrorism” as a “political philosophy” is on the run everywhere. It’s on the run in Afghanistan, where today’s cause celebre is the allegation of stuffing ballot boxes against presidential candidate Abdullah Abdullah. No one even alleges ballot-box stuffing for the Taliban because it has little governmental or real popular support.

So-called “terrorism” is also on the run in Egypt. There the mere anticipation of terror has caused the vast majority of Egyptians to support a return to authoritarian rule, and that rule to jail and condemn thousands of members of the Muslim Brotherhood, many of whom are innocent of any real wrongdoing. It’s almost like Newton’s first law: an extreme action (grabbing supreme power as the first act of a democratically elected government) produced an equally extreme and opposite reaction: the ostracism and suppression of what once might have become Egypt’s first real political party.

“Terrorism” is on the run in Africa, too. It’s on the run in Mali, where local people have invited French troops in to find and defeat extremists. It’s on the run in Nigeria, where an entire nation is aghast at Goodluck Jonathan’s condescending indifference, and Western skill and technology, coupled with motivated Nigerian troops, are finally on the hunt for the innocent girls’ kidnappers. Can bin Laden’s fate for the enslaver of girls be far behind?

“Terrorism” is probably on the run in Iraq, too, although that fact may be hard to see now, through the smokescreen of ISIS/ISIL’s recent easy victories.

The Kurds and their loyal, well-organized and effective peshmerga fighters aren’t going anywhere. They have effectively defended Kurdish territory for several decades, keeping terrorists at bay, mostly on their own. And now they have Yankee weapons and Western support and have gained new territory.

Perhaps the Kurds also have some clandestine Turkish support. In the past several years their clever leaders have discovered that waging politics with the Turks can be much more fruitful than waging insurgency or war. It’s now much easier for the Turks to protect their own borders by allying with the stable and reliable Kurds than by fighting random bands of roving Arab jihadis.

The Shiites in Baghdad and Basra aren’t going anywhere, either. They outnumber the Sunnis in Iraq, let alone Sunni extremists, at least three to one. They learned to fight during the decade-long war that we started. They have Yankee heavy weaponry and training and continuing Yankee support. And they still have the remnants of Muqtada As Sadr’s fervid militias.

The only reason the Shiites fled Anbar and points north was that Shiite troops on the ground didn’t see that territory as their own. They will fight to protect their homes and their families in Baghdad and Basra, just like anyone else.

So that leaves the Sunni “middle of Iraq,” where ISIS/ISIL and the Sunni sheiks who once led the Sunni Awakening each think they are using the other. But who has the real power there? The sheiks, whose mostly secular governance, through family, clan and alliances, goes back centuries? Or the recently immigrated and largely clueless foreign jihadis running around in pickup trucks with machine guns? My bet is that subtlety, guile, relationships, and local knowledge will triumph over dumb brute force, and soon, just as they did in the Sunni Awakening seven years ago.

The simple fact is that for forty years, Islamist “terrorism” has failed as a political philosophy everywhere. It has failed utterly and abjectly.

Extremism has done nothing for the Palestinians but keep them in poverty and misery for sixty years and counting. It has made a mess of Afghanistan, Somalia and Yemen, and soon perhaps Mali and Nigeria. It has helped make Syria a wasteland and a killing field, while giving Assad a transparent but plausible excuse to perpetuate his medieval brutality and genocide, with the aid of advanced weapons from Russia. Nowhere on Earth has any Islamist movement even begun to create the peace and order of the “caliphate” of which some Islamists dream.

On a global scale, all the extremists have managed to do is evoke the fear and loathing of the entire advanced world: us Yanks, Europe, Russia, China and India. They have managed to make the world’s richest and most powerful nations fear, hate and oppose them. That’s progress?

The universal fear and loathing from advanced societies are not without reason. Nowhere on Earth is there a glimmer, among Islamist leaders, of kind of wisdom and justice that a new caliph would need and that Mohammed himself had. The smartest of the extremists, like al-Zawahiri, are only beginning to understand that terror and death are not tools of governance, but blunt instruments of destruction and often (as in 9/11) counterproductive acts of desperation.

Now we in the West can continue to react with uncharacteristic thoughtless fear and loathing and spasmodic military strikes. Or we can begin to play politics.

Will this effort work? Maybe not. But’s it’s worth a try. It’s better than mutual jihad between primitive societies and the advanced world, which ought to know better than to begin a process that could end in genocide.

The key is not in the Afpak region. There’s too much bad blood and mistrust there, from too much recent conflict. Our occupation of Afghanistan and the ISI’s manipulation of the Taliban and local warlords have muddied the waters of normal social evolution too much. The key to converting Islamist “terror-ism” into a real “ism” (i.e., politics) lies much further south and west, in Anbar.

The Sunni sheikhs there are practical, capable local leaders, with centuries of experience in local politics. They are mostly secular. They did it all once before, in the Sunni Awakening that allowed us Yanks to extract ourselves from Iraq with what, for a time, seemed honor. They are smart, well-educated and civilized. (We Yanks should not mistake their lack of English fluency for lack of brains or political potential; we should get good translators.)

So our goal in Sunni Iraq should be simple. We should protect the Anbar sheiks as the rarest of treasures that they are: practical politicians in a region of religious extremists with zero or near-zero governing experience. We should support them in their struggle to maintain their territory in a fairly partitioned Iraq, with a fair share of Iraq’s oil revenue. We should support them in their alliances and struggles with jihadists, and we should help them learn how to get jihadists to lay down their arms and begin to govern.

Among the biggest mistakes that Dubya and Rumsfeld made in Iraq (and there were many!) was disbanding Saddam’s army and purging Iraq of all Baathists, without even vetting them first. Not only did this blunder deprive Iraq of many of its most experienced and capable people. It deprived Sunnis with vast military and government experience of gainful employment, leaving them no choice but to fight us Yanks and, eventually, the increasingly sectarian government of Nouri Al-Maliki.

Now is time to correct that error. It is far too late for Al-Maliki himself to do it. The political fault lines have already hardened into taken territory, and the battle lines have formed in new places. The Anbar sheikhs have made a perhaps unholy alliance with the jihadis, and the die is cast.

The only attainable stable outcome for Iraq is to become partitioned, and for the Sunni sheikhs to teach the jihadis how to govern, or to expel them. Whether Iraq becomes a federal, single state or three separate states doesn’t matter. What matters is that politics and governance reflect established facts on the ground: three separate states, each with fair and legitimate claims to self-determination and to a fair share of Iraq’s oil wealth.

“Terrorism” and Islamic extremism must learn to become an “ism” that actually can govern. If we Yanks can help the Sunni Iraqis pull that off, we can atone, at least in part, for the many catastrophic Western blunders in the region, going all the way back to the Brits creating a nonviable chimera called “Iraq” out of whole cloth. Then maybe the Anbar sheikhs can become an example for the rest of the Middle East and South Asia.

The Sunni/Shiite Divide: Not Our Fight

In previous essays, I have suggested that the United States draw closer to Iran (1 and 2), not just to solve the nuclear puzzle and assuage Israeli paranoia, but to atone for a cardinal foreign-policy sin of ours and to address a whole range of regional issues effectively. That advice might seem inconsistent with the foregoing essay, in which I suggest that we support the Sunni sheikhs in Iraq in their quest for self-determination and rational governance. But it is not.

The key to resolving the apparent contradiction is to understand that we Yanks have no dog in the Sunni/Shiite fight. Although we Yanks have millions of peaceful Muslim citizens, we are not a majority Muslim nation. If the truth be told, we don’t understand why Sunnis and Shiites are such mortal enemies. (Our analogous Christian schism between Protestants and Catholics was resolved peacefully long ago.)

So we Yanks ought to remain scrupulously neutral as we confront the Sunni/Shiite sectarian divide. And we try hard to do so. Our First Amendment, which forbids establishing any official religion and allows our own citizens to peacefully practice any religion they like, demands no less.

But politics is another matter entirely. Iran is a powerful, modern nation, rapidly restoring the democracy that we Yanks killed in it 61 years ago. Just last year, Iran had a real, free election that produced a moderate government. It finances terrorists only as a military tactic, and only in limited circumstances, for specified military objectives.

In contrast, Saudi Arabia remains a medieval kingdom that finances schools of hate and promotes jihad all over the Islamic world. It finances terrorists indiscriminately (as long as they don’t practice their darks arts in the Kingdom itself), and it uses its oil money to do so. It is by far the chief troublemaker in the Middle East and South Asia, surpassing Iran by a large margin, and easily surpassing Israel. So it is natural that, as we Yanks seek stability and order in the Middle East, and promote modernity and peaceful social evolution, we should draw closer to Iran and grow more distant from Saudi Arabia.

All this has little or nothing to do with religion, nor with the political aspects of the Sunni/Shiite divide. It is simply a matter of our chief goal as a nation and a people: making the world safe for profitable business, instead of making war.

So where do the Sunni sheikhs in Anbar come in? They, too, are part of this Yankee master plan. They are far from religious fanatics or warmongers. Instead, they are practical pols with long governing experience. So are many of the Sunni Baathists whom we thoughtlessly purged shortly after our invasion. Many are secular; virtually none are religious fanatics.

So, from a political perspective, and from our Yankee point of view, the Sunni sheikhs in Anbar have much in common with the Iranians. They are practical people with experience in governing and an apparent absence of counterproductive fanaticism. We can deal with them.

We sympathize with the Sunni sheikhs for another reason also. Today they are an oppressed minority. For three decades, it is true, they helped Saddam oppress the predominant Shiite minority in Iraq, often dreadfully. But today they have become the oppressed ones, under the inept rule of Al-Maliki, who deprives them of self-determination and their fair share of oil revenues, step by fateful step.

We Yanks believe that everyone has rights, even minorities. We have a minority president. So, despite their past sins, we sympathize with the minority Sunnis in Iraq, and particularly with the Sunni sheikhs, who seem less culpable for Baathist oppression and more skilled in governing fairly than the average Baathist bureaucrat.

The closest analogy to Iraq today is the Balkans. Just like Saddam in Iraq, the tyrant Tito suppressed ethnic tensions in Yugoslavia until he died and it broke up. Then, just as in Iraq when we deposed Saddam, all hell broke lose. What had been a peaceful country became an inter-ethnic war zone, complete with brutal atrocities.

In that melee, our air power protected Muslim Kosovars against atrocities by Christian serbs. Its use in the Balkans was much more effective and had fewer unintended consequences than our ground invasion of Iraq. But our goal in each case was precisely the same: stability, order and a fair shake for all contending ethnic groups.

Iran should share that goal in Iraq today. With its 70 million people and its status as a regional power, Iran has nothing to fear from the Sunni minority in Iraq, now estimated at about 12 million people (37% of 32.58 million), especially if their influence on Iraq’s government and foreign policy is not out of proportion to their numbers. Iran has much more to fear from oppressed and unhappy Sunnis in Iraq willing to make devil’s pacts with Sunni jihadis just to escape Shiite oppression.

Presumably Iran’s recently elected moderate leaders are worldly and smart enough to understand these truths. If so, there is a basis on which we, Iran and the Sunni sheikhs in Anbar can deal for the purpose of tamping down the religious wars that loose Saudi money is now trying to stir up. In that case there is no contradiction in our working with both the Sunni sheiks in Anbar and the Shiite leaders of Iran for the stability and order that all profess to seek.



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21 June 2014

Magna Carta at 800: A Global Teachable Moment


Some time next June, about a year from now, Magna Carta will turn 800. The exact date I leave to historians to determine: there were several versions, and the prevailing calendar was different then.

Whatever the exact date is, it deserves massive celebration, all around the globe, especially in every English-speaking nation. The anniversary will be a uniquely important teachable moment for our entire species. Nations that revere the Great Charter as the fount of post-ancient democracy should agree on a single date and make it a common, international holiday.

Why is Magna Carta so important, and what can it teach? Here are its principal lessons:

    1. Democracy takes time. Eight centuries will have passed since King John negotiated an agreement with his Barons to avoid a bloody battle. Yet there is still no perfect democracy anywhere on Earth. Our Yankee democracy is far from perfect, with minority rule in our Senate and (except at the whim of John Boehner) in the House.

    There may never be a perfect democracy. But knowing Magna Carta’s longevity helps us all have patience with Russia, China, Egypt, Libya, Syria, Ukraine, Iraq, and even ourselves.


    2. Democracy is a never-ending struggle and negotiation over power. Magna Carta’s real character often surprises people who know its general import but not its details. It says nothing about voting and absolutely nothing about ordinary people, let alone their supposed “rights.”

    Magna Carta’s direct beneficiaries were all the then elite—the plutocrats of their day. They were the Barons themselves, other less noble landholders, the high clergy (one of whom drafted it), and the sheriffs who enforced the nobility’s law. Women gained a bit, but only noble women, and then only through dower rights to their husbands’ estates after death. Ordinary people, including peasants, workers and tradesmen, remained subject to their lords’ and “betters’” whim.


    3. The impetus for democracy was, and still is, a less bloody substitute for armed conflict. King John signed Magna Carta for one reason only. He and his forces had assembled on the fields of Runnymede opposite the Barons and their forces, all in full battle regalia, ready to rumble. The King could count, and he saw he was outnumbered.

    So he could fight, lose a lot of men, and possibly his own life or his freedom. Or he could make a deal. He made a deal, which we now consider the foundation of Anglo-American democracy. In a risky position, he chose bargaining and compromise over jihad.

    Except for a few embellishments, like free markets and the rule of law, that simple principle is what makes English-speaking societies among the best places to live on the planet, 800 years later.


    4. Economic power matters, too. Magna Carta came about because the English Barons, like the King, had lots of land and therefore economic power. In those days, land was the principal, if not the only, form of “capital” and the predominant source of wealth.

    With land and the income it provided, the King and the Barons could hire and support their own armies. Without the Barons’ economic power, there would have been no balance of military power and no agreement. The dispersion of economic power among the Barons—a tiny but distinct social class—was the practical source of Magna Carta and the raw beginning of egalitarianism.


    5. Economic power, the source of political power, depends on a lot more than politics. Despite Magna Carta, ordinary people never had much power until the Industrial Revolution. Until then, they were peasants, working land that others owned. Their homes and their crops, which they grew with their own labor, were not really their own.

    The Industrial Revolution made a difference. It allowed ordinary workers to create wealth without owning land or working others’ land. Of course they had to work in others’ factories, but their skill made a difference. So, eventually, did their ability to organize and strike.

    So for working people, democracy depended most on the skill and cooperation of labor. It didn’t reach full flower until Henry Ford’s $5-a-day wage (in 1914). That then unprecedented wage gave workers the power to create wealth with their skill in making things and an ability to buy what they made, thereby enriching capitalists. Labor and capital became unequal partners in each other’s enrichment, and our consumer society, with its large middle class, took off.


    6. Economic power can come and go with changes in culture, social norms and technology. Today’s economies, most observers agree, require a large middle class. Why so? Because in today’s populous cities and nations, there are not enough “elite” rulers, including pols and CEOs, to form anything like a complete society.

    Economic life and technology are so diverse and specialized that no leader, no matter how skilled, could, for example, make or fly an airplane or computer or run an airline or power plant all alone. The more economic power workers have through specialization and division of labor, the more power they have to bargain with leaders, just as the Barons did with King John.


    7. But mass culture also threatens to disempower the individual. Imagine the power of the Barons without their land. It would have vanished. Such is the dilemma of individuals in a mass culture, with nothing unique to give them bargaining leverage.

    Movie stars, sports stars, great teachers, scientists, doctors and lawyers may have bargaining power, but what about the rest of us? As our lives become a perpetual struggle to educate ourselves and our kids and climb the corporate or economic ladder, what happens to our individual bargaining power? Do we become like the Barons without land, or landless peasants before the industrial revolution? It looks as if we’re about to find out.

    Whatever happens, the basic principles of Magna Carta hold true. First, no one and no social class ever achieved power without leverage and the willingness to use it, even to fight if necessary. The Barons were no patsies: they got their rights in writing because they were ready to fight. Second, peaceful bargaining, no matter how prolonged and frustrating, is better than bloodshed and war. It nearly always produces more lasting and stable results. Think of those 800 years.

    Can our species put those two simple lessons to work in Ukraine, Iraq and Syria, maybe even Sudan and South Sudan, the Congo, Zimbabwe and the whole of the Korean Peninsula? Only time will tell. But wildly celebrating Magna Carta’s 800th birthday may help recall those two simple lessons.


    8. Democracy is not all. Magna Carta was an important step in human social evolution. But it was not and is not a guarantee of human social success. Our species still needs to maintain and accelerate its moral evolution.

    The reason is simple but compelling. Majorities can err, too. Democracy is no guarantee of taking the right path.

    Little more than a generation away from the pinnacle of human culture and civilization, the German people freely elected Adolf Hitler their leader, the first time. In our American South, eleven seceding states, with long traditions of democratic government, repeatedly and adamantly chose slavery as their socioeconomic system. Fourteen years ago, we Yankees (with some help from our Supreme Court) freely elected George W. Bush, who instituted torture and rendition in the world’s then-greatest democracy and invaded two sovereign states, starting the two longest wars in our Yankee history.

    In ancient Greece, great thinkers and writers like Plato and Socrates once carried the burden of evolving moral philosophy. But for two millennia, at least outside of Asia, our species has outsourced and institutionalized the project. Organized religion has stolen the legacies of great thinkers and leaders like Jesus and Mohammed and left us with caricatures of totalitarian states.

    From their half-secular and half-religous pulpits, popes and imams think for or harangue our masses, in exchange for vast wealth and social privileges, in a ghastly and cynical bargain. You masses maintain me in obscene luxury, secure above the quotidian struggles that all humans must endure, and I will think for you and tell you what to do. This is neither democracy nor cooperative human thinking. (Pope Francis is a welcome exception who proves the rule.)

    For two millennia, Heaven and Hell were as real to many ordinary people as political parties are to most today. They—or their evocation by elite religious leaders living in monarchial luxury—were the moral flywheels of human society.

    Today those flywheels are losing their momentum. In our highly educated society, we know that Heaven and Hell are but clever human fictions. In the West, ordinary people are turning away from organized religion in droves, while a few extremists yearn for medieval simplicity and seek to trigger Armageddon. In the East, Islam is decaying similarly, while a few extremists turn the systematic slaughter of innocents into an obligatory holy rite.

    Despite Martin Luther’s best efforts, nowhere have we humans found a moral compass to replace Heaven and Hell, or a moral democracy to replace the intellectual tyranny that organized religion has become. Nowhere have we forged a society in which free men and women can evolve their own working morality, within a framework of free but guided individual thought.

    Now that our species has, at least tentatively, put the specters of starvation, want and war at bay, we need to attend to our moral evolution. We need to find new thinkers like Plato and Socrates and pay at least as much attention to them as we pay to sports heroes, rock stars, notable terrorists, caricatures of policy makers, and winners on American Idol. Perhaps Magna Carta can help here, too, if only by reminding us that nothing of value comes to us without careful attention, risk and struggle. Let us not forget that Socrates, like Jesus, was killed for his moral thinking.

* * *


I first met Magna Carta in 1971, long before I became a lawyer and later a law professor. I was a postdoctoral geophysicist, beginning my NSF-NATO fellowship in Cambridge, England. But I knew how important Magna Carta was in our common history. So when I visited the British Museum for the very first time in my life, Magna Carta, not the Rosetta Stone, was the thing I most wanted to see.

The display there and then was a disappointment. There were two or three original sheepskins (vella) with the document inscribed on them in faded, centuries-old Latin script. I had studied Latin and had won a Latin essay contest as a high-school student. But I found the faded, tiny, ancient calligraphy, lacking spaces between words, indecipherable.

After trying for an hour to read the great document, while ducking other visitors wanting better views, I gave up. I left the display with reverence but little understanding.

Over four decades later, as a law professor, I saw a much better exhibit in the Australian National Museum in Canberra. I think it had one copy of a later-signed vellum version. But more important, it had an interactive digital display of closeups of original vella, with copious transcribed Latin script and English translations. It also had modern explanations of the significance of each provision and how it had changed (or not) through the various versions of Magna Carta, which had appeared over several decades. I left that exhibit not only with even more reverence, but with infinitely greater understanding.

Magna Carta is unique in two respects. First, it’s an idea. It represents societal advancement through peaceful, voluntary compromise among rough economic equals. It’s a part of our social evolution that separates us decisively from other primates, whose clans the alpha ape governs absolutely and by force..

Second, and perhaps more important, Magna Carta’s history tells how a vital idea, which helped make us human, evolved through most of the last millennium. In order to appreciate the process, we must know, in detail, how incomparably primitive King John’s world was compared to our own today, and how nevertheless the idea and the compromise behind Magna Carta remain timeless.

Almost five years ago, I named three later events in human history whose anniversaries also deserve enthusiastic celebration. One occurred in England, and two in Germany.

The first was Martin Luther’s 1517 Wittenberg Church Manifesto, which challenged the Catholic Church’s absolute power and endorsed individual thought and conscience. It took only baby steps from that liberation of individuals’ minds to attain modern democracy and modern science.

The second was the English Parliament’s adoption of the Statute of Monopolies in 1623. This law reduced absolute and abusive economic power, just as Magna Carta had reduced absolute political power. It’s the foundation of American antitrust law and European and Japanese competition law. In many respects, including treble damages and exceptions for patents (and later copyrights), the old law still reads like a modern statute, after nearly four centuries.

The third great event after Magna Carta was the 1946 Nuremburg Trials (for war crimes) after World War II. For the first time in human history, the Trials held national leaders responsible for their crimes not just to their own people or to their conquerers, but to our entire species.

Yet for three centuries, Magna Carta remained the single greatest step in human social evolution. It will always be the first. So its 800th anniversary deserves massive, informed celebration by educators everywhere, as well as by every people that values its lessons.

Holidays are days we set aside to celebrate things that really matter. Isn’t the foundation of democracy, through reasoned compromise as a substitute for armed battle, one of those things? If so, let the planning for the fireworks, bonfires, music and parties begin!

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14 June 2014

Iraq: a Western Chimera


In both ancient mythology and modern biology, a “chimera” is an artificial organism created by splicing together parts of two or more different species. Examples are the Sphinx—a combination of man and lion—and Pegasus—a white horse with a swan’s white wings.

Since human imagination is boundless, conceiving chimeras is easy. Making them work is another story entirely.

Most animals of different species don’t mate and can’t reproduce together. Even when produced with the aid of modern surgery and genetic engineering, most chimeras aren’t viable. They live a while and then die prematurely. And even if they live a semblance of a natural life, they don’t reproduce naturally, let alone breed true.

Despite all our pretensions, we of the species Homo sapiens aren’t God. Nor is biology as flexible and adaptable as our fertile imaginations. But still we dream.

And so it is with Iraq. Once ancient Mesopotamia, it lives in a region over which armies of various ethnicities have fought for millennia. For most of four centuries, it was part of the Ottoman (Turkish) Empire, at times with varying degrees of autonomy, but with direct Ottoman control from 1831 until World War I.

The Ottomans fought alongside the Germans in World War I and lost. So the British got control of the region now known as “Iraq.” Then the British Foreign Office invented the Kingdom of Iraq out of whole cloth. It is entirely an artificial country, a chimera.

The Brits, of course, were not stupid. They knew well that the region contained at least three ethnic groups: Kurds, Sunnis and Shiites. They knew that these groups had fought each other for millennia, directly or through alliances with various conquerors and other outsiders.

Why did the Brits create their chimera? Did they imagine a thing of art and beauty, like a Sphinx or Pegasus? Did they have the germ of the dream of Duyba, that Iraq would some day become a democracy of sorts, if not exactly like Switzerland?

Not hardly. The Brits made their chimera for the same cynical reason that Caesar had described nearly two millennia before: “divide and conquer.” The people of Iraq, the chimera, would be more docile and easier to control if they were constantly at war with each other, harboring grievances long predating British rule and likely to long survive it. The victorious World War I Allies, who had given the Brits a mandate, went along.

So Iraq was not just a chimera. It was a chimera designed not to survive—at least not to trouble the imperial Brits with claims and challenges for independence.

It was this unviable-by-design chimera that Dubya and Rumsfeld—with the knowledge, insight and understanding of infants—dreamed of invading and converting into an Arabic-Kurdish Switzerland.

It was a nice dream while it lasted. But now reality intervenes. The realistic choices now seem begrudging and costly partition, as in the Balkans, or Syria.

Except perhaps for our own, real nations are not made. Nor are they born. (The Soviet Union is experimental proof of that.) They evolve, slowly and haphazardly, much like species.

Their process of evolution is a social one, not a biological one. So it doesn’t take hundreds of thousands or millions of years. Still it takes decades or centuries. When the process of evolution involves conflict and accommodation among essentially foreign cultures, it is likely to take closer to centuries than decades.

Of all people, we Yanks should have known this. When we abandoned our Articles of Confederation, drafted our Constitution and became a real nation, we tried to meld two different cultures: our industrial, communitarian North and our rural, aristocratic, slave-holding South.

Our two cultures spoke the same language, revered the same Bible, and looked back toward the very same Anglo-American history. They both came from long democratic traditions. They were, indeed, far less foreign to each other than Shiites, Sunnis and Kurds in Iraq.

Yet after trying to get along for Lincoln’s four score and seven years, they got engaged in the greatest war in our Yankee history. Still, today, our losses in that single war roughly match or exceed our losses from all the other wars in our short national history.

And still today that war continues, politically, without bloodshed. The Tea Party is almost entirely a Southern phenomenon, as are the filibuster and the so-called “Hastert” rule that impose minority rule on Congress. The gridlock in Washington that we see and lament every day is a direct consequence and outgrowth of our Civil War, and of the progress in our dominant culture that allowed a half-“black” man to become president, to the immense chagrin of the South.

And yet we Yanks had the audacity to dream. We thought that what we ourselves couldn’t do in over two centuries the so-called “Iraqis” could do in a mere decade, with our help. Social evolution is indeed faster than biological evolution, but it’s nowhere near that fast.

So the choice we Yanks (and our European allies) face today is stark. We can continue taking extraordinary measures to keep the unviable chimera alive. We can expend our money, put our forces in harm’s way, and risk our national reputations in a conflict among foreign cultures that we have never fully understood. Or we can step back and assist the natural process of partition that is now virtually a fait accompli.

We can’t say we weren’t warned. Throughout our Iraq War, and especially when the earlier civil war there flared up in 2006-2008, there were those of us who advocated partition. They included then Republican Senator Dick Lugar of Indiana (in 2007!), now put to an early retirement by the clueless Tea Party, which could care less about rational foreign policy. The savvy also included Vice President Joe Biden—a fact that bodes well for his foreign-policy judgment and a possible presidential run.

Dreams are not bad things. Some day, we may know how to make viable chimeras. Some day, we may know how to smooth or finesse vast differences in culture without war, civil or otherwise. But neither is so today.

There comes a time when reality must supersede dreams. Partition already exists on the ground and in the hearts of so-called “Iraqis.” Refugees are already on the move, as they have been ever since Dubya and Rumsfeld tried to realize their impossible dream by force. Our Yankee task now is to make the process of partition as bloodless and painless as possible, as in the Balkans, and as unlikely as possible to further disturb the region.

The social-evolutionary process of nation building in the Middle East still has a long way to go. Our quixotic attempt to jump-start it is now a self-evident failure. We must accept that reality, support reasonable and defensible territories for each of the three ethic groups, get out of the way, and let the process of natural evolution resume.

Neither picking sides nor attempting to supervise a clash of cultures about which we know little or nothing is a viable option. Force is seldom the best option, and blind force even less so.

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11 June 2014

It’s Character, Stupid!


Introduction: character and the law
How law became a business
What happened to pols of character?
Can character be taught?
Weeding out bad character
Conclusion
Coda: our Yankee blind spot

Introduction: character and the law

Lots of people like to teach law. It’s an engaging and personally satisfying profession. You get to handle both airy abstractions and real people and their trials, often at the same time. You get to teach bright, highly motivated students, most of whom are articulate and eager. There are few deadlines (beyond showing up for class and grading exams), and the only real responsibility you have is to the students you train.

Preparing for class is time consuming and sometimes tedious. But contact with students is both a daily challenge and a joy. As one colleague sagely said, “They pay me to sit in faculty meetings and grade exams. I teach for free.”

Some of my colleagues are teaching into their seventies, if their administrations let them. Some seem to want to be carried out of their classrooms on their shields.

So why did I retire “early,” at 66? There were personal reasons, but there was a more important general one. I was losing respect for my profession.

Let me repeat that. I was losing respect for the profession that I had practiced for twenty-four years—32 including law practice, and 35 including my own legal training. I was losing respect for the profession that advises every big business on our planet and that, in vast majorities, controls every state and national legislature in our country. I was losing respect for the profession in which the overwhelming majority of our political chief executives have been trained.

Increasingly, something was missing, and what was missing appeared (and still appears) to me to be a big reason for our national decline.

When I went to Havard Law School in the mid seventies, they taught us two things. First, they taught us to think about consequences—what lawyers and pols call “policy,” and what Justice Scalia now derides as not “law.” They also taught us not to leave our moral sense and conscience behind.

If we thought a client was about to do something wrong, our teachers said, we had the right, if not the duty, to say so. If the client persisted in doing something that disturbed our conscience, we had the right, if not the duty, to walk away—to “fire the client” in lawyer-speak.

We had to maintain client confidences, but we didn’t have to become accessories to clients’ wrongdoing. In extreme cases, such as a planned murder, we could even breach client confidences.

We lawyers shouldn’t have to do it every day, but when push came to shove we had a special role. As members of a learned profession with special privileges—professionals with a “calling”—we had a duty to society and to ourselves to act as a moral flywheel, restraining our society’s and our clients’ moral excesses. As members of a privileged and highly paid profession, we had a duty not just to help clients comply with the law, and often to evade it, but to distinguish right from wrong.

Lawyers don’t do any of this much any more. We apply our airy abstractions without much heed to consequences. We let bankers obliterate an otherwise well-fuctioning industrial economy, throwing millions out of work and out of their homes. We mass deport law-abiding, hard working foreigners living among us, whose only crime was seeking a better life here.

As for controlling clients, when was the last time you heard of a major law firm firing a client for contemplating or perpetrating a massive wrong? Often even major law and accounting firms go down with their wayward clients, as in the Enron scandal, which now seems ancient history.

How law became a business

Why is this happening? The answer is easy to state but not to fix. What once was a learned and sometimes noble profession—a “calling,” in now-outmoded terms—has become a business. The “customer,” who used to be a client and a willing recipient of sometimes critical advice, now is always right, at least as long as he pays the bills. Right, wrong and consequences (especially longer-term ones) take a back seat to expedience, clients’ perceived needs and lawyers’ income.

Let me give you an example. It was the height of the Cold War. A former KGB head and architect of the Soviet invasions of Hungary and Czechoslovakia (Yuri Andropov) was leader of the Soviet Union. We Yanks had a series of extremely complex laws and regulations designed to prevent our advanced technology from falling into the hands of the Soviets or their allies. And I worked in Silicon Valley.

A client that I served was ignorant of these laws and, in my view, a bit cavalier when informed about them. So I wrote my contact a memo about the laws and regulations, noting criminal sanctions for their violation.

A week or so later, my contact for that client sent me a copy of a local business-newspaper article, claiming that virtually no one ever went to jail for violating high-tech export control regulations. Shortly thereafter, I was removed from that client’s account and admonished by my firm.

Maybe my inexperience led me to exaggerate the risk of criminal action. Maybe I hadn’t yet learned the extreme smoothness and “finesse” that good lawyers have, and that still sometimes makes me uneasy.

Those are maybes. But two things were certain. First, my client wanted to know not what was lawful or right, but what it could get away with. Second, that was just fine with my firm.

I was not the only one to reach that conclusion. A senior partner of my firm retired about the same time I left law practice for teaching. He took me out for a long lunch before I left. He, too, lamented the transformation of law practice from a learned profession into a business, with a fat bottom line the chief and often the only goal. He was glad, he said, to be retiring at that time and so to distance himself from the easily foreseeable consequences of the drastic change in culture.

It took a few decades, but we are living with the consequences now. Great banks whose reputations for honesty, prudence and integrity had gone back decades, if not centuries, issued crap loans based on liars’ applications, massively violating their own credit standards. Then they packaged this excrement as crap securities and sold it to unwitting buyers (as far away as Iceland) as quick as they could. The global economy collapsed and is still recovering.

Nary a lawyer or accountant, apparently, raised a peep—at least not with any discernible positive effect. If there were a big law or accounting firm that fired a big banking client to make the point, I have not heard of it.

The moral flywheels of our society flew off their axles and lay in a corner, rusting and gathering dust. In place of a learned profession and a calling grew a business just like any other, amoral and increasingly immoral. If lawyers had once been guardians of right and wrong in our society, then, in the words of ancient Rome, “quis custodiet ipsos custodes” today?

The same thing happened with torture. After 9/11, mediocre lawyers serving more as “political operatives” than as independent professionals wrote memos justifying secret rendition and torture of people never even accused of any crime. Their memos were so poor in substance and reasoning that they would hardly have earned a “C” in any self-respecting law school. Their “clients,” including our then president (Dubya), kept their memos secret, apparently abashed at both the lack of substantive quality and morality, not to mention consideration of consequences.

Whether the lawyer authors of those C-work memos ever raised a single moral qualm, history does not record. It took an honorable hothead like John McCain, with his unquestionable Republican and military credentials, to begin to set things right.

What happened to pols of character?

Character is that indefinable quality of thinking, saying and doing right, even when no one is watching and there’s money at stake. It’s not just listening to that still, small voice. It’s amplifying it and acting on it, so it has a noticeable effect.

Character means little in good times, when decisions are easy. It comes into play when times are tough and decisions are hard. In recent years too many of our leaders, especially those trained as lawyers, have made hard decisions too easily and made them wrong.

Perhaps the hardest decision ever made was Harry Truman’s decision to drop the Bomb on Japan. That decision had terrible consequences. But what were the alternatives?

If the Bomb had not stopped the war like a deus ex machina, an incomparably bloody invasion of the Japanese mainland would have ensued. Japan was already arming fourteen-year-old boys, imbuing them with fanatic patriotism and giving them sport rifles and makeshift spears to resist invasion by a modern, mechanized army.

Would we be such good friends with Japan today if all those young boys had been slaughtered by modern weaponry? if every square inch of Honshu (Japan’s main island) had been fought over and devastated?

I like to think that Truman and other men of character agonized over these points before deciding to bomb Hiroshima and Nagasaki, smaller cities without the extraordinary economic or historical significance of Tokyo or Kyoto.

We had only two bombs, and we decided not to drop either on Tokyo, Osaka, or Kyoto, Japan’s centers of government, commerce, and spirituality, respectively. Do you think that Tojo or Hitler would have balked at obliterating Washington, D.C. or New York City if either had had the Bomb first?

The acme of good character occurred in October 1962. Three men of good judgment and cool character saved our species from self-extinction. All the while their peers and military advisers raged with ideology, anger and fear.

The three men’s names should be household words in every home worldwide, for as long as our species survives: Khrushchev, Arkhipov and Kennedy. Without their cool judgment, which is part of good character, most of us simply would not be alive.

We Yanks and the world are also lucky that, at the cusp of our and world history, we had leaders of such character as FDR, Truman, and George Marshall, who gave us and our former enemies his eponymous Plan. Truman’s character was equally on display when he fired General MacArthur for risking general war with China, and when he integrated our Army racially for the first time despite enormous pushback from our recently victorious armed forces. That was character!

Now fast-forward to our new century. I voted for Al Gore. I will go to my grave fervently believing that he would have been an infinitely better president than Dubya. Who wouldn’t?

But Al Gore epitomized our loss of national character—and much of its source—when he took “no controlling legal precedent” as his moral compass in commenting on L’affaire Lewinski. Like many lawyers, he mistook not committing a felony for right and proper conduct.

I don’t mean to rag on Al Gore, whom I still greatly respect. But if a man of generally good character like him could confuse moral rightness with the absence of criminality, who in our over-lawyered society wouldn’t? And maybe that gaffe, among others, made him fail to garner enough votes to prevent the Supreme Court from stealing the election for a man of much worse character.

That’s the predictable consequence of a society where lawyers run everything, where law schools teach parsing law into minutiae, and where lawyers’ jobs are to help their clients circumvent the law and still stay out of jail as much as obey the law’s spirit or promote its purpose.

Today law has become a game of “I’m home free” or “gotcha!” Morality and good character have vanished in a haze of strategic thinking based on formal rules. We have become a team of baseball players who would rather dispute the rules than improve our game.

Part of the problem is the way we teach and practice law. Our law schools grossly overemphasize the important of the adversary system and zealous advocacy. Representing a client’s interest—or for pols, a fixed and dogmatic ideology—becomes more important than justice, progress or even making sense.

Of course every litigant or criminal defendant deserves fair and reasonable representation. But the apotheosis of adversarial conduct has opened the floodgates to less and less reasonable argument in the courtroom, and consequently longer and longer judicial opinions. Lawyers feels they must make, and judges feel they must analyze, every argument, no matter how sophistic or unreasonable, that is not self-evidently frivolous enough to provoke sanctions under Rule ll. The spillover into our political arena should be obvious. Real reasoning, let alone good policy, gets lost in a fog of strategic thinking and strategic argument.

And so we have a vice president of the United States, later almost to win the presidency, declaring that what has “no controlling legal precedent” making it criminal is right. No wonder the Japanese and many other foreign cultures look and us Yanks and think we have too many lawyers!

Can character be taught?

The awful degradation of our national character has not gone unremarked. Law schools and sometimes even lawyers have tried to stop the fall. So we now have required courses on “Professional Responsibility” and “Legal Ethics” in law schools, and corresponding questions on state bar exams.

But these two courses don’t even influence character. The former enmeshes students in a series of complex formal disciplinary rules, just like those of any statute. For students, it’s another semester memorizing and reconciling subsection (b) of Rule 1.37[2] with subparagraph (i) of Rule 6.35(A). It’s another exercise in abstract game playing, with little, if any, real moral content.

The legal ethics course is not much better. It wanders off into philosophy and other abstractions, and then comes back to the formal rules, if only to have something concrete to test on the final exam.

Character is not like that. Everyone already has a conscience. Even many Nazis did, as recently-released extraordinary records of Nazi war prisoners’ impromptu conversations revealed. Many abhorred the Holocaust, even as they supported a government that they despised and that they feared would seal their own personal fate. Even the worst feared retribution and damnation when they thought they were losing.

Having a conscience is not character. Everyone but psychopaths does. Character is speaking out on it and acting on one’s conscience—even in the face of opposition and personal sacrifice. How do you teach that?

You can’t really teach it because you can’t reach back into a child’s earliest upbringing. Anyway, part of character may be genetic.

We Yanks tell and retell the legend of George Washington and the cherry tree, or of Lincoln’s walking miles to return a penny of excess change. These apocryphal stories have become popular legends because we all once understood that good character forms early and takes a lifetime to develop.

You can’t teach good character by teaching rules and strategic game-playing. Maybe you can’t teach it at all. Maybe you just have to find the people (fewer and fewer in our over-lawyered society) who have it and cherish them.

But we don’t do that. Instead, we idolize so-called “enterpreneurs” who exploit the “law” of big numbers to make billions, in their twenties or teens, from fads on the Internet.

Maybe that’s why Obama is President. McCain had plenty of political and military experience. Obama had little and none. But Obama’s character, apparently, appealed to more voters than an honorable and heroic hothead’s. Later it appealed more than an arrogant salesman’s with near-zero public leadership but lots of ego.

Maybe we still value things like patience, empathy, thoughtfulness, prudence, honesty, perspective, civility and moderation. Maybe we value them enough even to overcome our residual racism. Maybe our voters know something that our law schools and most pols do not.

Weeding out bad character

Maybe some day we’ll be able to put candidates for high office into a virtual environment, test their moral decision making, and give them electric shocks when they choose wrong. Maybe in this manner we can correct a lifetime of bad character and “re-educate” people.

But we don’t have that technology today. And anyway it sounds too Orwellian and too much like re-education in Red China.

So if we can’t teach character and can’t change bad character, what can we do? We can weed bad character out, at least among leaders whose bad character can do us real damage.

Not long ago, China demonstrated one way of doing that. Bo Xilai was a dangerous demagogue and an unstable, unpredictable nationalist. If you worry about war between China and Japan now, you would be insane with worry if Bo Xilai ever got his hands on real power in China.

With no formal precedent or relevant legal rules, the great Chinese party bureaucracy put him safely in jail, with little chance of appeal or release. That’s not our Yankee style. But it worked. China’s memory of Mao’s disastrous capriciousness in his later years is still fresh, and no sane Chinese leader wanted to repeat it.

In our country, we already have a much simpler, softer and gentler expedient. It’s been in place for most of a century. But in doesn’t work because we don’t take it seriously.

Every state bar in the country has a “character and fitness” requirement, which law schools are supposed to help enforce. That’s great in theory, but enforcement is a joke.

This I know from personal experience. Every year before my retirement, graduating law students would ask me to fill out one-page forms attesting to their good character and fitness to serve as “officers of the court,” i.e., licensed lawyers. When I didn’t know them at all, I would tell them so and ask them to seek other references. When I did know them well enough, even if only from acquaintance in the classroom (where they are on their best behavior), I would fill out the form, rarely with a reservation or two.

As this description makes clear, this job was mostly useless make-work. I took it seriously because I value character above all, and because I know that, in our society, every lawyer has the potential to become a leader. Only once in twenty-four years of teaching did I have a student whose character was so self-evidently bad as to warrant a negative report.

The student did not ask me for a reference. But I felt duty bound to report extraordinarily bad behavior and judgment, and my doubts about character and fitness, to the bar of the state in which this student proposed to become lawyer. If it had been up to me, there would have been no admission to any bar in the nation.

So I wrote a draft letter. As a reality check, I showed it to my associate dean, a patient and skilled administrator with good judgment. He advised me not to send it, for two reasons. First, he didn’t think bars in general pay any real attention to their “character and fitness” requirements, except when candidates have criminal records. Second, he thought that practical lawyers who administer the requirements, and who frequently adjudicate malpractice actions based on much more serious circumstances, would discount it. There are already so many bad apples in our various bars, he implied, that keeping one more out of the barrel would not be worth anyone’s attention.

In sending the letter, he told me, I would just be wasting my time. I trusted his practical judgment and didn’t even polish my draft.

This is the state of our “character and fitness” requirement for becoming a lawyer and “officer of the court.” And since law practice is a gateway to power for most pols, this is the state of our gateway to political leadership.

As long as you have no criminal conviction, you can become a lawyer, and then a prosecutor, congressman, senator, governor or president. You can pass by the gate easily, even if you have the worst character that a reasonably mild-mannered professor had seen among his students in two dozen years.

Conclusion

Democracy is a good thing. At least our species hasn’t yet figured out a better way to select leaders who enjoy popular support and have reasonable experience and qualifications. As Winston Churchill said, democracy is a terrible system, but it’s better than the alternatives.

Yet democracy sometimes goes demonstrably awry, as demagoguery influences selection. Adolf Hitler, you may recall, won a free election as Chancellor of Germany, the first time.

We Yanks have had a series of demagogues of our own, including Huey Long, Joe McCarthy, and now Ted Cruz. And lest we forget, we recently survived the inept rule of one of the stupidest presidents in our history, who got elected on the basis of demagoguery made scientific.

Would we want men like Long, McCarthy or Cruz with their fingers on the button? Would we even want an honorable, heroic hothead like John McCain? Aren’t the possible consequences—species self-extinction—a little too harsh to risk?

Experience and ideology are not the issue. We can safely trust the people to make decisions on that basis because, for the most part, inexperience and even ideological dogmatism are reversible. (Think of Nixon going to China.)

But the consequences of bad character are not. Adolf Hitler engulfed Europe and the world in our species’ most catastrophic war yet. Fifty million people died prematurely as a result. The war he started might have extinguished us, or at least Western Civilization, if he had lived to see the Nuclear Age.

Josef Stalin faked a “win” in free elections by stuffing the ballot box. He had his much better rival, General Kirov (who probably would have won without the ballot-box stuffing), shot the next day. The people of Russia suffered the Terror for several decades afterward as a result. Likely Mother Russia would have beaten Hitler much more easily if General Kirov had led it, rather than Stalin. And if Stalin had lived to preside over the Cuban Missile Crisis of 1962, instead of Khrushchev, everyone reading this post might be dead or never born.

Isn’t that a little too much risk to take for having a “character and fitness” requirement that’s a practical joke?

China can weed out such dangers easily, because its huge party hierarchy vets candidates for high national office. The decision makers are people who have known, worked with and even fought with the candidates, often for decades.

Misleading television and Internet ads don’t influence them. They know the candidates from actual and close experience. That’s probably why there appears to have been no dissent against jailing Bo Xilai from within the hierarchy, only from the people of his city. He could fool the people of his town, but he couldn’t fool the pols who knew him well.

Putting teeth into our supposedly universal character and fitness requirement for lawyers would require a transformation in law schools and state bar associations. They would have to serve as real gatekeepers, barring bad people from the practice of law and therefore likely from politics, which draws mostly from lawyers.

It wouldn’t be a perfect system, by any means. But it wouldn’t be Orwellian either. It would involve the best sort of judgment that our species can render: the judgment of mentors and peers. Screened-out applicants could still secure gainful employment: there are lots of legal jobs that don’t require bar membership. But few of them lead to political careers.

At the moment, the public rightly assumes that licensed lawyers have a certain level of attainment. It knows that most of our notable Founders, including Jefferson, Adams and Madison, were trained in the law. (Ben Franklin, the printer and scientist, was not.) So our people naturally assume that their modern counterparts are roughly equivalent.

In substantive legal knowledge, they are probably right. There is much more law today than there was at our Founding, and we teach it much more rigorously and precisely. Few of our Founders could likely pass today’s basic bar exam, let alone the parts that test knowledge of our our currently detailed, multipart statutes.

But character is another matter entirely. Law has become a business, not a profession. That business now includes lots of people of poor, intermittent or negligent character, or whose character is up for sale. It also includes a few real scoundrels, the likes of whom Colonial society barely would have tolerated.

Our system has proven itself much too vulnerable to bad character. Look at Newt Gingrich, Sarah Palin, Ted Cruz and John Cornyn, to name just a few. On the Democratic side, look at John Edwards. Cornyn may be finished, but the others (except for Cruz) aspired to the White House and came within spitting distance. Ted Cruz may still.

And look at Chris Christie, who seemed to be the Republicans’ savior before his extortionist side emerged. Would any experienced New Jersey pol who had worked with him for decades have made the same mistake? (This is one reason why I’ve urged that our parties return to selection of candidates, or at least a short list, by party elders, not by demagogable and demagogued primaries.)

Character is our system’s Achilles Heel. It’s so easy for PR experts and video ad makers to give pols impenetrable masks with which to hide their true character. Debates are now a sham, a bit of show business for the rubes. How could that not be so, when many “independent” (read “uninformed”) voters know candidates only from a few thirty-second ads, and when we devote enormous sums of money to letting those ads influence their thinking (if you can call it that) through vague impressions, without facts or thought?

If we insist on continuing a PR- and ad-driven political system, we should at least weed out the worst rotten apples before they spoil the barrel, and maybe the whole world. Stiffening the “character and fitness” requirement for entry into our state bars could be one small step in that direction.

Our Yankee Blind Spot

The foregoing essay focuses primarily on the practical consequences of our willful neglect of human morality—thinking and doing right. We were surprised when a housing bubble built on lies caused a financial fear stampede and destroyed the global economy. We were abashed when a government founded to contain the excesses of kings stooped to torture and medieval brutality because our leaders were too stupid to imagine more effective and moral responses to 9/11. We are still trying to think our way out of a political system in which money rules absolutely, and people like me are forced to pony up to publish lies and oversimplifications just to counteract the lies of the self-interested 0.1%.

The truth is, we Yanks always have styled ourselves a practical people. We don’t think much about philosophy, right and wrong or (apart from wealth and goods) what makes a “good life.” Our late, great philosopher John Rawls was and remains a total anomaly, a Yankee fish out of water.

That’s a shame. We Yanks purport to be the standard-bearers of democracy. But as a culture, we are far, far from the ancient Greeks or Romans. Our great universities and our society would puzzle and dismay Cicero, let alone Plato or Socrates, who would think we are not even asking the right questions.

We Yanks don’t think much about right and wrong. Instead, we think about the next iPhone, our stock portfolios, our quarterly profit, or how to counteract lies with more lies, all under the rubric of “free speech.”

Collectively, we mostly stopped thinking about the important questions after our Civil War, if not after our Founding. We have apotheosized our Founders as minor deities, and we revere their work as Scripture, rather than carrying on their tradition of thoughtful analysis of what’s right and wrong in a democratic society.

Yet still we have big egos. We style ourselves a “light unto nations” at the tender age of 238. In contrast, ancient Rome lasted eight centuries, and Greek democracy most of a millennium, because their leaders kept on thinking, year after year, failure after failure. (Next year, British democracy will have lasted precisely eight centuries—a point on which I have an upcoming essay.)

Forget, for a moment, about the sad consequences of our blind spot so recently in evidence. Even on an abstract, sophistic level, the notion that what is not criminal is right is fundamentally absurd.

Our society revolves around a presumption of innocence. Everyone is innocent until proven guilty in a court of law.

So in order to brand anyone a criminal, our society must surmount three high obstacles. First, we must catch the wrongdoer. And we must do so in a society that heavily values privacy and individual freedom and therefore makes police work difficult. Second, we must find evidence of wrongdoing, sufficient to prosecute successfully before a jury. Third and finally, we must find enough evidence to convince a jury beyond a reasonable doubt, despite evidentiary rules that often exclude solid and relevant evidence just because the authorities screwed up in gathering it.

Don’t get me wrong. I like our criminal-justice system the way it is. I don’t advocate a police state, especially with our increasingly oppressive high-tech snooping apparatus.

But if we accept our criminal-justice system, with all its warts, we must recognize that, in the words of the old saw, it lets ten guilty go free rather than punish one innocent. At our best and most efficient, we get only ten percent of the bad guys. And we like it that way.

And most of them, for practical reasons, we let go lightly with plea bargaining. We simply can’t afford the public trial that would brand all criminals as wrongdoers, give the public evidence of their wrong conduct, and make examples of them.

This sort of justice system is a fair compromise for a huge modern society that values freedom, privacy and autonomy above all. But it’s hardly an accurate system for distinguishing right from wrong.

From the drug dealer who goes free to catch the cartel kingpin, through the myriad evil and avaricious bankers who never went to jail or even lost money, to the GM engineers and executives who nodded at a deadly ignition switch that would have cost mere dimes to fix—there are a lot of bad people in our society whom we don’t label as criminals. That doesn’t mean they are good people, or that their acts were right.

Maybe we Yanks just have too many lawyers. Maybe, in the absence of anything resembling real philosophy, we have fallen into the cognitive trap of mistaking strategic thinking under formal rules for real self-analysis, both of our individual selves and of our society. Maybe our consciences have simply fallen asleep.

But if so, we need to awaken them soon. We need to starting thinking again, hard, about what is right and wrong, what makes a society good, and what is right conduct for citizens of a democracy. And we need to start teaching our children, not ideology or dogma, but how to think clearly about these things for themselves.

We need a modern Socrates to ask tough questions that require tough answers—someone who can force us to think about them. Without such a person, the tides of history may simply wash away our “exceptionalism,” along with the joy of living in our nation.

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05 June 2014

Potatoes and Birds


Potatoes and birds both live. But what a difference!

Potatoes are amorphous, bulgy, even ugly. They live underground. They’re inert. They don’t do much of anything. They just sit there and grow.

It’s not that potatoes are bad. They can keep you alive for a long time, without any other food. Wash their skins, but don’t peel them, and you’ve got a lot of vitamins and minerals, too.

But don’t expect change or novelty from a potato. What you see is always what you get. A potato never surprises.

Birds are as different as different can be. They live in the air. They soar. They swoop and dive. They dart. With their light and agile bodies, they can change direction in an instant. They can dance in the air, the better to catch and eat a bug you can’t even see.

We humans have always admired birds. That’s not just because they can fly and we can’t, at least not without the aid of enormous mechanical contraptions. They are they epitome of flexibility and adaptability. They can move and change direction more quickly and easily than anything on land or in the air.

Unfortunately, most people are potatoes. They think and do the same things from day to day and year to year. They don’t change. Their ideas don’t change. They go to their graves thinking and doing the exact same things—harboring the exact same prejudices and making the same horrible mistakes—as they have all their lives.

Dubya is a potato. As president, he was well-meaning. But he personified the old saw that good intentions pave the road to Hell. He had all the intelligence of a potato, in both senses of that word.

Among many other things, he started two unnecessary wars, one of which is still killing our troops. He did so just to do what we now see, in retrospect, we could have done better and faster with ninjas and drones, at a tiny fraction of the cost in blood and treasure.

Dubya’s being a potato was unfortunate, and not just because of its immediate consequences. It was unfortunate because every dramatic improvement in the human condition has been made by a bird. Dubya had no chance to do that—none at all—because he’s a potato.

For all his faults—and they were many—Richard Nixon was a bird. He went to China. After using Communism and “Red” China as punching bags to win elections for his entire career, he grabbed Henry Kissinger, got on a plane and flew to Bejing. The result, some forty years later, is the world’s most important bilateral relationship and the world’s second largest economy.

Some day soon China will displace us as number one, at least in economic clout. But its relationship with us will remain mostly cooperative, thanks to Nixon and Kissinger. Their going to China in the middle of the Cold War was a big, birdlike aerial pivot.

Jack Kennedy was also a bird. His CIA and military advisers inveigled him into the Bay of Pigs invasion of Cuba, a horrendous mistake. Like some kind of movie monster, that blunder morphed into the Cuban Missile Crisis, which nearly extinguished our species.

But Kennedy pivoted, birdlike, ignoring the advice of his bellicose advisers (with only his trusted brother Bobby dissenting). He got Nikita Khrushchev on the phone, and the two men—both birds—negotiated a way out of species self-extinction. Another Russian bird, then unknown, avoided accidental Armageddon by refusing to let his Soviet nuclear torpedoes fly. His name was Arkady Aleksandrovich Arkhipov. (Remember that name well; if you are alive today, you probably owe your life to him.)

FDR was a bird, too. He was born into one of the richest families in the United States. Yet he championed ordinary people when their backs were to the wall. His upper classmates called him “a traitor to his class,” and plutocrats still revile his memory. But his aerial acrobatics in the New Deal and the horrible war that followed saved capitalism from itself and made our nation, for a time, the strongest, richest and happiest on Earth.

Lincoln’s birdness saved our nation in another way. At the outset, he was a passive racist. Slavery was just another political issue for him. Like most Americans at the time, he believed that the black races, which are 98% identical to the rest of us, were inferior. But under the pressure of the Civil War and possible dissolution of our nascent nation, he changed direction. He became The Great Emancipator.

These are just a few examples from our own Yankee history. But all of the great advances in our entire species’ history came from birds, not potatoes. Potatoes can nurture us—including our predilections and prejudices—but they can’t advance us or save us from real dangers. Only birds can.

Potatoes can’t avoid a trap or seize an opportunity because they can’t change change direction. They have no direction. They can’t even plod. They just sit and grow.

Our current President is a bird. He changed our oppressive and dysfunctional health-insurance system after others had failed for an entire century. That took some aerial acrobatics, still ongoing. It also took incredible perseverance, through one of the best-funded and most relentless propaganda campaigns in human history.

He also got us out of one of the two unnecessary wars that Dubya started, and he’s about to get us out of the other. As befits avian flexibility, he wants to leave some of our troops in Afghanistan, to protect our modest gains there. It looks as if whoever wins the Afghan presidential elections will let him.

Now he’s using his executive powers to do his best to reduce the acceleration of carbon emissions, atrocious pollution, and global warming, which the potatoes can’t see. How could they? They live in their own little worlds, underground.

But the President has only 2.5 years to go before the next presidential election, when he becomes another kind of bird: a lame duck. In some ways, he’s been a lame duck for his entire time in office. That’s due to the adamant opposition of potatoes—millions of them—many of whom can’t see much beyond the color of his skin.

For about twenty years, the GOP has been mostly a sack of potatoes. No ideas at all, let alone new ones. No change. Nothing new at all, except for new words for the same old propaganda, such as “job-killing taxes.” Its “base” is even more potato-like: the aging couch potatoes glued to Fox all day.

The only thing birdlike in the GOP recently has been the Tea Party, which put the party in a suicidal avian dive straight toward the ground. Obsessing about debt is nothing new to the GOP. It used to be a classic trait of so-called “establishment” Republicans, at least until Reagan busted the budget and, in the immortal words of great thinker Dick Cheney, “proved deficits don’t matter.”

The “establishment” potatoes don’t like the return to extreme orthodoxy at all. The Kochs and other potato plutocrats are in the processing of crushing the Tea Party with their money and their media clout. The primaries just concluded showed their might. Likely even Thad Cochran won’t survive. And so we have the triumph of one strain of potatoes over another.

But the winning potatoes are potatoes just the same. They, too, have no new ideas. Just keep taxes low, regulations weak, and regulators starved for money and power. Then keep the hoi palloi fired up with abortion, religion, and endless “scandals” and the ruling plutocrats rich, lightly taxed, and happy. The whole potato clan—at least the ones at the top, who matter—will wax fat, underground, where their potato eyes can’t see.

Yet birds are not entirely extinct, maybe even among the GOP. So it’s worth a bit of thought to identify them. Our nation’s future may depend on them. Certainly the GOP’s will.

Is Sarah Palin a bird? At first, she seemed so. No doubt she was a novelty, especially in a party whose male potatoes mostly see women the same way the Nazis did: limited to kinder (wanted or not!), kirche, und kuchen.

(Isn’t it funny how societies and movements that marginalize women always seem to be dangerous to everyone, from the Nazis and the Imperial Japanese war machine down to the Islamic extremists today? Just on general principles, dissing half your own species doesn’t seem such a good idea. Even potatoes wouldn’t do that!)

But Palin’s ideas, too, were the same old GOP line, on taxes, regulation, abortion and immigration. She’s just a potato with an attitude. So are Michelle Bachmann, Rick Perry, and Mike Huckabee.

Is Chris Christy a bird? The deeper investigators dig into his political history in New Jersey, the more he seems like a garden-variety potato of the mob variety—a Mafioso potato with a seemingly Anglo-Saxon name. He embraced the President, kissing up, while his minions closed the bridge onramp, stomping down. Leaders of potato gangs have been doing that since the dawn of potato civilization.

Is Jeb Bush a bird? Maybe, but it’s hard to see how. He does seems a moderate, and he knows how not to offend voters. (English nobility once defined a gentleman as someone who gives no offense unintentionally.) But can he twist, soar and dive? Does he have any minimally new or original ideas? Only time will tell.

Maybe Jeb’s never had the chance or a good reason to be a bird. But it seems just as likely that he’s a mere a potato with a bit more intelligence and diplomatic skill than the average spud.

So who’s left? What about Rand Paul? He just broke ranks with much of his party, and with the Fox couch potatoes, by opposing vote suppression with voter-ID laws. He bears watching, for he might be a bird.

For most of us, his move is obvious. “Voter fraud” in this nation is way down below the 0.1% level. The average accountant not only wouldn’t consider it material; she might not even notice it. But ID laws disenfranchise minorities and poor people, many more of whom don’t own cars, don’t drive, and consequently don’t have drivers’ licenses. The statistics on this are absolutely solid.

Rand Paul’s reason for breaking ranks is indicative. He’s not worried about disenfranchising people, just “offending” them. What he means is that he’d like to disenfranchise those who would vote for Democrats without offending those who might vote for Republicans.

Is this a bird swoop or a potato’s primitive cognition? Does Rand have a spark of bird in him, or is he (to drop the bio-metaphors) just a loose cannon? A lot depends on the answer.

Things aren’t any better in the House. John Boehner the über-potato is still in charge there. He even looks like a potato, at least in the face. (Christie looks more like one in the body.) Boehner’s perpetual beetle-browed scowl would make a great Potato Head doll.

Compared to Ted Cruz and the worst of the Tea Party, Boehner can seem reasonable. But there is no birdlike spark in just rejecting extremes. Anyway, he takes his cues straight from the plutocrat potatoes; you can almost see the ring in his nose and the golden chain leading to the money pots.

Boehner did have one little birdlike twitch early this year. It happened when the Tea Party was ready to flirt with national default yet again. He told his party members that it’s better to win than to lose, and make people very angry, for “principle.”

So for now, in the words of Looney Tunes, that’s all, folks. The potatoes still rule the GOP. If potatoes could march, they would be in lockstep. But the GOP doesn’t march because spuds don’t walk. They respond to challenges and problems by doing what they’ve always done or always advocated: cutting taxes and regulations and giving the rich more power.

The GOP birds, if any there be, are staying in their nests. At a time when the party’s money-bag potatoes are crushing its suicidal birds, nests seem like good places to stay.

But if the GOP ever wants to win a presidential campaign again, it’s going to have to nurture some birds, as hard as that may be for spuds. Cloning birds from potatoes is not something even the genetic engineers have yet figured out how to do.

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