Category: Accountability

Shame

From Maggie Nelson’s The Art of Cruelty: A Reckoning (Norton, 2011):

‘[Sister Helen] Prejean’s logic rests on the hope that shame, guilt, and even simple embarrassment are still operative principles in American cultural and political life—and that such principles can fairly trump the forces of desensitization and self-justification.  Such a presumption is sorely challenged by the seeming unembarrassability of the military, the government, corporate CEOs, and others repetitively caught in monstrous acts of irresponsibility and malfeasance.  This unembarassability has proved difficult to contend with, as it has had a literally stunning effect on the citizenry.  They ought to be ashamed of themselves! we cry over and over again, to no avail.  But they are not ashamed, and they are not going to become so” (32).

I don’t have much to say to this statement—beyond noting how completely it echoes my own experience and sentiments.  The administration at my university is just about completely non-accountable at this point.  Which made me think that “public shaming” (as I tried to do in the newspaper editorials I wrote about their actions) was the only recourse left.  But they have proved immune to shaming, might even take it as proof that they are doing their “tough jobs” of protecting the university’s interests.

It does not make me feel a sap.  I realize more and more that a certain self-image of integrity is central to my own serenity.  Of course, complacency about one’s self is an ever-present danger.  Pharaseeism afflicts us all.  But I do abide by the rule of “never say no to a student.”  Whatever they ask for, they shall receive—just as the same all-inclusive indulgence is extended to my children.  I have no right, given my job and my salary, to turn students down.  And abiding by that rule is one way I maintain my self-respect.

So the question about the shameless is: where does their self-respect reside?  Where is the line they would not cross, the action they would not permit themselves?  I have always liked what I call “Kant’s rule of publicity”: basically Kant argues in one of his political essays that any action is morally dubious if the agent of that action would prefer it being kept a secret.  We reveal our awareness of an action’s non-morality when we strive to keep it unknown.  (Yes, there is the tradition of keeping benevolent actions a secret—a tradition mostly honored in the breach these days by our publicity-seeking philanthropists—but the existence of this sub-set of good actions needn’t detract from Kant’s larger point.)  The attempt to keep things secret is an acknowledgement of shame and guilt.  But it does seem Nelson is right: when malfeasance is “outed” these days, the impulse is to brave it out, to never show the weakness of admitting guilt or manifesting shame.

And there is the even more gob-smacking pride in offensive behavior, as politicians compete to see who can most vociferously endorse torture and taking food stamps away from the hungry, and CEOs boast about how far they can drive down wages and take away benefits for their workers.  Oh, brave new world!

Assembly

I said, perhaps, far too little about Hardt and Negri’s Assembly when I finished reading it a few months back.  Since then, I have read Todd Gitlin on Occupy, della Porta on Social Movements in Times of Austerity (Polity, 2015), and Judith Butler’s Notes Toward a Performative Theory of Assembly.

One theme is the performative nature of assembly: how it can create the collective that proposes to make a political statement/intervention, and (even more) how it can create the kind of community to which those who assemble aspire.  The assembly is “prefigurative.”  That is the term that is used.  It is the change it wishes to see in the world.

My skeptical objection has been consonant with most responses to anarchism: a) how does the assembly propose to produce/gather the resources that would make it sustainable?; b) is the assembly scalable?  If it proposes itself as a model of the desired polis, then how does it grow to accommodate much larger numbers of members/participants?; and c) what kinds of structures, organization, leadership, communications, and other infrastructure must be created in order to maintain the assembly over the long haul?  Occupy was completely parasitic on the “larger society” it was trying to secede from—or was it overthrow?  Occupy was dependent on goods made in that larger society, monetary donations coming from that society, as well as on the expertise (medical, technical) that larger society, through its educational system, imparted to certain individuals.

An assembly, in other words, is not a society—and to claim that somehow it represents an alternative society seems to me disingenuous, extremely naïve.  It is one thing to say that Occupy modeled modes of relationship that we wish could be more prevalent in our lives.  It is quite another to claim Occupy modeled an alternative to mainstream society.  To use Judith Butler’s terms, Occupy did not provide the grounds for a “livable life.”

But Gitlin and Butler both point us toward what seems to me a much more productive way to think about assembly.  They both stress that democracy as a political form is deeply dependent upon assembly—and that the current assault on democracy from the right includes a serious impairment of rights to assembly.  Vote suppression has gotten most of the press when it comes to attending to the ways that our plutocrats are trying to hold out against the popular will.  But the anti-democratic forces are also determined to limit opportunities for assembly.

Let’s do the theory first.  Democracy rests on the notion of popular sovereignty.  In the last instance, political decisions in a democracy gain their legitimacy through their being products of the people legislating its own laws for itself (Kant).  The fact that such things as a ban on assault rifles and increased taxes on the rich are (if the polls can be believed) supported by a large majority of Americans, but impossible to enact in our current political system, seems a good indicator that we do not live in a democracy—a fact with which most of the Republican party seems not only very comfortable with, but determined to sustain.

Because the final arbiter is supposed to be the popular will, there will always be a tension in democracy between the representative bodies of organized government and the people.  That tension leads to repeated critiques of representative government and calls for “direct” or “participatory” democracy (dating all the way back to Rousseau).  It also leads to the oft-repeated worry/claim that democracy only works on a small-scale.  A large scale democracy (and what is the number here?; probably anything over 100,000 citizens or so) will inevitably depend on representatives to carry out its political business—and thus, in the eyes of direct democracy advocates, inevitably fail to be truly democratic.  Elections are too infrequent—and not fine-grained enough (what, exactly, are the voters saying?) to provide sufficient popular input into specific decisions.  Add the many ways in which elections are manipulated and you quickly get politicians who are only minimally accountable to the populations they supposedly represent.  The electoral system is gamed to insure that position (office) and all its privileges and powers are retained by incumbents—or by the party currently in power.

How to make politicians accountable?  One device is plebiscites, which have some kind of appeal.  Let the people vote directly on matters of interest to them.  The problem with plebiscites is that they are a favored tool of the right—and produce (in many cases at least) what is best called “illiberal democracy” or (to use Stuart Hall’s term) “authoritarian populism.”  The blunt way to say this: never put rights to a vote.

Liberal democracy (or constitutional democracy) actually tries to place certain things (usually called “rights”) outside of normal democratic decision making, out of the give and take of ordinary political conflict/wrangling/compromise.  Some things are held apart from the fray, are guaranteed as the rules of the game (basic procedures), as the lasting institutions (the court system, the legislature, the executive), and as the basic rights enjoyed by all citizens (civil liberties).  The constitution also established the “checks and balances” of a liberal order—such that no particular person, office, or governmental institution possesses absolute power.  Power is distributed among various sites of government in an attempt to forestall the ever present danger of its (power’s) abuse.  The use of plebiscites is, thus, authoritarian, precisely because it bypasses this constitutional distribution of power through the appeal to the direct voice of the people—thus authorizing the executive to act irrespective of what the courts or legislature has to say.

SO: if one is committed to a liberal polity as well as to a democratic one, the notion of “direct democracy” is not very appealing.  The “tyranny of the majority” is a serious concern—as my home state of North Carolina has repeatedly demonstrated throughout its history of Jim Crow and in its recent 61% vote in favor of an amendment to the state constitution against extending the legal protections of marriage to same-sex couples.  In a liberal society, the popular will is to be checked, to be balanced by other sites of power, just as any other form of power is.

Of course, in any system, there comes to be a place where the buck stops.  As critics of the Constitution—the anti-Federalists of the 1790 debates over ratification—pointed out from the start, the structure of the US government lodges that final power in the Supreme Court.  That is why we are such a litigious society; the final arbiter is the Court—a fact that is deeply problematic, and which has led, in our current deeply polarized moment, to the Republicans resting their best hope for defeating the popular will on controlling, through the appointment of right-wing judges, the Court.

Some theorists of sovereignty insist that it can never be distributed, that it can only be exercised when it emanates from one site.  Despite the outsized power of the Supreme Court in our system, I think it vastly overstates the case to say the Court is the sole site of power in our polity.  Justifying that claim would lead me in another direction, one I won’t take up here.  Suffice it to say that I favor a constitutional amendment that would limit Supreme Court judges (and probably all federal judges) to one 25 year term.  That way we would be spared having our fates in the hands of 80 year olds (a true absurdity) as well as randomizing when a position on the Court came vacant in relation to which party controlled the Senate at that moment.  The amendment would also state that the Senate must make its decision about the President’s nominee within six months—or forfeit its “advise and consent” powers if it fails to act in a timely fashion.

But: back to assembly.  Butler, I think very usefully, suggests that assembly in a democracy is an incredibly important supplement to the legislature.  Here’s the basic idea: the people’s representatives can, because of their relative freedom from direct accountability, do things that various segments of the population disagree with.  The first amendment ties “assembly” to a right to petition the government.  The text reads: “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Thus, assembly is tied to the notion of “the people” having another means, apart from the actions of its representatives, of expressing its opinions, desires, will—and that alternative means is expressly imagined as a way of expressing displeasure with the actions of the government.  It is in the context of “grievances” that we can expect the people to assemble.  In this way, the right to assemble can be seen as a partial remedy to the recognized ills of representation.  The people, by assembling, embody (the terms here are Butler’s) democratic sovereignty and make it “appear” (utilizing Arendt’s notion of politics as the “space of appearances).  After all, the will of the people (the ultimate ground of democracy) is invisible unless it takes the corporate form of assembly since even, as Benjamin Anderson’s notion of “imagined community” makes clear, an election is a virtual, not visible and actual, manifestation of the popular will.

Assembly, then, is democracy in action (note the Arendtian stress on action)—and would thus seem to be as essential (perhaps even more essential) to democracy than voting.  It is when and where the demos comes into existence.  It is democracy visible—and hence its deep appeal to contemporary writers from Hardt/Negri through to Butler, writers who are all appalled by democracy’s retreat in the face of technocratic, plutocratic neoliberalism.

Gitlin documents in the last chapter of his book all the various ways—starting with union busting and moving through the use of “permits” for demonstrations to keep demonstrators far away from the people they are demonstrating against to the criminalizing of assembly itself (as not “permitted” in the double sense of that word) to a closing down of public spaces to certain political uses—that the right to assembly is currently under assault, an assault that parallels the various efforts to curtail voting rights. Our overlords fear the assembled people—and are doing their best to erect obstacles to such assembly.

Thinking of the Chartists, I am also sorry that the nineteenth century connection of assembly to the presentation of petitions (a connection the first amendment also makes) seems to have been lost.  All those virtual petitions each of us is asked to sign on line every day are pretty demonstrably useless.  But what about 100,000 (or more) people marching to the Capitol and calling on the Senate Majority Leader to come out and take from the hands of the people a petition?  Great political theater if nothing else—and a vivid demonstration of the collapse of democracy if that politician refuses (as I suspect would happen) to engage with the people he claims to serve.  Face-to-face is much harder to ignore than what comes to you across the computer screen.

Still, and obviously, I don’t think assembly is the be-all and end-all of politics, for all the reasons I keep on banging on about.  But Gitlin and Butler have made me much more attuned to the possibilities and resources that assembly can—and does—possess for a left wing politics.

Biopower/Biopolitics

Foucault introduces the notion of “biopower” as a supplement to his theory of “disciplinary power.”  He argues, convincingly in my view, that what we might call the “welfare state” slowly emerges from about 1750 on.  That state takes ensuring the welfare of its citizens, promoting and even providing the means toward sustaining life, as one of its primary missions—or even its fundamental reason to exist, the very basis of its legitimacy.  The state that can protect, preserve, and even enhance the life of its citizens is a state worthy of their allegiance and obedience.  It seems plausible to claim that the Roman empire did not value citizens’ lives in this way, or that medieval kingdoms did not place each citizen’s welfare as a central value the polity was pledged to honor.

Typical of Foucault is his desire to focus on the way that something which is often celebrated as “progress” in fact carries significant costs that a Whiggish history ignores.  We can use the term “liberalism” to designate the traditional story (even though, as I have argued vehemently over the years, it makes no sense to accuse 20th century liberals of buying this story; we must distinguish, at the very least, “classical” from “modern”—or 29th century—liberalism).  The liberal story has several parts: a) consent of the governed to the state’s power in return for protection, for the preservation of life; b) the rise of the individual, which is why every life is equally entitled to that protection; and c) the establishment of “rights” that aim to protect citizens from the potential abuses of power by the state itself.  Liberty, in this understanding of the world liberalism establishes, is meaningless without security.  Only someone who is confident that his life will continue will be able to act out the kinds of long-term plans and undertake the kinds of initiatives that make liberty a reality.  This notion of the necessary preconditions of liberty gets expanded as the 19th century moves into the 20th to include what sometimes get called “social rights” (to contrast them to “political rights.”)  Social rights are claims upon the polity to provide the “means” to life: namely, food, shelter, education, health care, clean air and water, the list can go on.  Political rights, on the other hand, are direct protections against undue interference in a citizen’s behavior: freedom of speech, religion, assembly, along with legal rights against preventive detention, arbitrary imprisonment, and rights of participation, including the right to vote, to run for office, and to form/join political parties.

Foucault had, with his work on disciplinary power, made a compelling case that the advent of individualism, usually seen as a progressive step toward valuing all lives (if not equally, at least in ways that proclaimed that no life could be legitimately sacrificed), offered pathways to the intensification of power.  Namely, each individual becomes a target for power’s intervention.  (Strictly speaking, of course, we should say each body becomes a site for power’s intervention—and that power produces individuals out of bodies.)  Liberal political orders exist hand-in-hand with an economic order (one Foucault resists calling capitalism) that is determined to make each person as productive as possible.  A whole series of disciplinary techniques are applied at a multiplicity of sites through a society to insure that individuals are up to the mark, that they are, as the phrase goes, “productive members of society.”  And all kinds of punishments are devised for those who prove deviant, where deviance comes in an astounding variety of forms.  Disciplinary power “articulates” the social field with finer and finer gradations of acceptable behavior, with every citizen constantly being measured (through endless processes of examination) against the various norms.

Disciplinary power, then, works upon each individual.  Compulsory education is one of its innovations; the highly organized factory is another, the creation and training of the mass citizen army another.  In each case, every body in the ranks must be made to conform, to play its part.

Biopwer, by way of contrast, works on populations.  The nation that takes “life” as its raison d’etre will focus attention on individual life, but it will also be concerned with the general preservation of the nation as well.  That is, it will become interested in birth and death rates, working to raise life expectancy, to lessen infant mortality, to  encourage pregnancy and attend to the health of pregnant women.  The statistical (general) knowledge that can be generated about such things will suggest various large-scale interventions by state power.  The most obvious one are in public health measures: laws (regulations) to protect air and water quality, but also the outlawing of “dangerous” drugs and the interdiction of suicide.

At some points, Foucault appears to be simply describing something that is so familiar to us, so taken for granted, that it is practically invisible.  The state’s power increases when we, as citizens, grant it the right to enforce various public health measures.  We could say, in a similar fashion, that state power increases if we make it one of the state’s responsibilities to provide public transport.  The gathering of money and the granting of jobs involved in creating and running a public transport system must entail the state having more power.  After all, power is not just power over (any employer has power over employees, and the state is no different in that regard) but also power to.  The state would not have the power to (ability to) run a transportation system unless it had power.  So the more duties we assign to the state, the more power it, necessarily, accumulates (unless it is totally ineffectual).

However, as many readers of Foucault have noted, his discussions of power quite often come with the distinct flavor of “critique,” in a dual sense: first, as a revelation of power’s presence where either ideology (semi-deliberate masking of the reality) or taken-for-grantedness hide that presence, and second, as a strongly implied normative criticism of power as illegitimate, evil, or pernicious.  Some commentators have even started to wonder if Foucault has affinities with ne0liberals insofar as he associates state power with tyranny.  I think that is going too far because Foucault (especially with disciplinary power) was very attuned to the ways in which power is exercised in non-state venues (like the factory) and certainly never thought of the economic sphere, of private enterprise, as a site of liberty unrestrained by power.  But his temperamental anarchy does make his approach certain libertarian positions in troubling ways—since, in my view, the libertarian is absurdly naïve, being blind to power’s presence in ways that Foucault has taught us to mistrust.  Power is everywhere—and always with us.  (Hence other readers of Foucault have taken “power” to be the “god-term” in his work.)  Instead of the anarchist dream of a world without power, my view is we have to think about ways to rein in power, to limits its abuse, and that means distributing power in ways that neither state or employers have enough power to leave their citizens or their employees without effective recourse against abuses.  Foucault, however, never goes in that direction.  After identifying the many sites where power is exercised, and implying that such exercises are not good things, he has nothing more to say about how we might or should respond to that situation.

Foucault has a particular reason for thinking biopower pernicious: his argument that it leads to racism.  I will take up that argument tomorrow—since it is the direct claim that a “politics of life” leads to the infliction of large-scale death.  For now, one last point: biopower is not biopolitics.  There are lots of ways of understanding “politics,” but one fairly basic definition of the term would be “pertaining to the collective arrangement of ways of living together with others.”  That is, we don’t have politics until more than one party is involved in the creation (through negotiation, or legislation, or other means) of the arrangements—and where the goal is to establish a modus vivendi that enables sustainable co-existence (which means at least semi-peaceful and semi-stable ways of muddling along).  “Biopower” only identifies where and how power, focused on issues/questions of “life,” intervenes, is exercised.  “Biopoliitcs” attends to the ways that placing the question of “life” prominently among the issues a society must address leads to certain political debates/decisions/conflicts in the ongoing collective effort to forge the terms of sociality.  We might say that “biopower” suggests a passivity of the part of power’s subjects—a passivity Foucualt always claimed he never intended to convey, yet nonetheless inflicts a vision that is as “apolitical” as his.  An odd charge, I know, since Foucault seems intensely political.  But his work rarely attends to the collective processes through which power is created and its specific techniques are forged.  Instead, power appears out of the cloud like the God in the Book of Job.  And it proves just about as unaccountable as that God as well.  You can resist it the way you might kick your broken-down car but you can’t get under the hood and actually tinker with its workings.  It takes a political vision to imagine that kind of transformative work, a work that would involve negotiation and compromise with others, and the eventual creation of legal and institutional frameworks (invariably imperfect).  It would require, in other words, a belief in the power of people to intervene in history, in place of the kind of transcendent power Foucault presents us with.

Leverage, Round Two

To summarize: a movement needs to generate mass disobedience to an objectionable governmental practice or law–and win the approval of non-movement members in the process.  For the civil rights movement, that meant refusing to abide by the practices and legal statutes that were segregation de facto and de jure.  The mass disobedience found that sweet spot where, finally, the government lost its will to uphold those practices and laws.  Yes, it took some time.  But, finally, the spectacle of arresting people who were just trying to be treated equally was no longer supportable.

For the anti-war movement, it was draft resistance.  Not as clear that public opinion was won over to the side of the resisters, but draft law came close to being unenforceable and the easy way out was to create the “all volunteer” army.  That move, of course, was the government’s way of sidestepping the larger issue of the anti-war movement: citizens’ ability to stop the government from waging war.  That ability has not been gained, while ending the draft took away a crucial leverage spot and made anti-war movements much more difficult to sustain.

Pretty obviously, protesting–and rectifying–discrimination is harder.  In the cases of segregation and the draft there is a law to disobey.  But in the case of discrimination, you are trying to get the government to enforce the law against your opponents.  Now the government and the legal system needs to be your adversary, and is not your antagonist.  That greatly limits the stage, doesn’t provide for dramatic confrontations, or mass disobedience.  Prodding the government to action is a tough one–and, I am starting to think, the real source of my perplexity about what forms effective action today could take.

That would seem to go in spades for a constitutional crisis.  Since the 2000 election, with the follow-ups of the illegal Iraq War and torture, and now the shenanigans of the Trump administration, we have seemingly discovered that it is very difficult, if not impossible, to call the government to account.  If the “system” worked in calling the Nixon administration to account for its crimes, that still suggested that only the government could successfully curb the government. And since 2000 there is no evidence of the government having the wherewithal to call itself to account.

I read the other day someone talking about how the people would take to the streets if Trump fired the special prosecutor or pardoned himself and his family.  But it is unclear how taking to the streets would have any impact.  The pessimist in me says that as long as daily life was not disrupted, the republic would tolerate massive malfeasance.  One, because the issues–the rule of law etc.–are so arcane, and two, because it doesn’t feel like it hits people where they live.

Oddly enough, Trump’s crimes are sort of victimless; they damage our democracy, perhaps irreparably, but they don’t seem to harm anyone in particular.  I was wondering about this in terms of “standing.”  Could I sue (and who would I sue) for damages because my vote was rendered meaningless through election fraud?  Would I be granted “standing” to bring such a suit?  And what would be the remedy if I won such a case?  It is unimaginable that there would be a “do-over” of the election?  And yet, what else could be suitable recompense?

I wish I had something better to offer.  A successful movement has to get a large number of people to consider themselves as members of a wronged collective.  Post-2008, the unemployed and the defrauded quite conspicuously failed to make that leap.  Somehow losing your job or losing your home was experienced as an individual misfortune, not something that tied you to many others with whom you should unite to protest against your lot.  And, again, that would have been a case of trying to get the government to do something, rather than protesting against or disobeying a government action.

As long as normal life is mostly left in peace, we seem to be left with the ballot box.  But not only have Republicans worked hard to shelter themselves from democracy (through gerrymandering, voter suppression and the like), but politicians have more reasons than ever to listen to the powerful few as opposed to the powerless many.

North Carolina’s Moral Mondays seem to prove this point.  They have been sustained over an admirably long time–and seem to have had no impact at all except to harden the hearts of our Scrooge-like state legislators.

All of this might mean that party politics is really the only game in town.  Leftists need to engineer a take-over of the Democratic party akin the the take-over of the Republican party by its right-wing.  Only the primary threat makes politicians answerable to voters when the general election districts are gerrymandered.

 

Self-Regulation

I am reading Siddhartha Mukherjee’s The Gene: An Intimate History (Scribner, 2016).  Lots of interest here—and lots of scientific information that is simply new to me and sometimes beyond my ability to comprehend.  More on that, perhaps, later.

For the moment, I want to focus on a more political point.  Mukherjee devotes a few pages to a 1975 conference at Asilomar (near Monterey in California) in which genetic scientists hammered out an agreement to not pursue certain possible laboratory experiments and procedures because of the potential danger of loosing pathogens into the world.

Quoting from Mukherjee’s account:

“Extraordinary technologies demand extraordinary caution, and political forces could hardly be trusted to assess the perils or the promise of gene cloning (nor, for that matter, had political forces been particularly wise about handling genetic technologies in the past [a reference to forced sterilizations in the US and Nazi eugenics]).  In 1973, less than two years before Asilomar, President Nixon, fed up with his scientific advisors, had vengefully scrapped the Office of Science and Technology, sending spasms of anxiety through the scientific community.  Impulsive, authoritarian, and suspicious of science even at the best of times, the president might impose arbitrary control on scientists’ autonomy at any time.

A crucial choice was at stake: scientists could relinquish the control of gene cloning to unpredictable regulators and find their work arbitrarily constrained—or they could become science regulators themselves.  How were biologists to confront the risks and uncertainties of recombinant DNA?  By using the methods they knew best: gathering data, sifting evidence, evaluating risks, making decisions under uncertainty—and quarreling relentlessly.  ‘The most important lesson of Assilomar,’ [Paul] Berg [Stanford professor and key figure at the conference] said, ‘was to demonstrate that scientists were capable of self-governance.’ Those accustomed to the ‘unfettered pursuit of research’ would have to learn to fetter themselves” (232-233).

Except, of course, that they don’t—fetter themselves that is.  Oddly enough, Mukherjee doesn’t seem to see this.  He hails Asilomar as “a graduation ceremony for the new genetics” (235).  Less than ten pages later, as Mukherjee retails the story of the creation of synthetic insulin, we learn that the success comes from a private company, Genentech, which beats the Harvard team working on the same problem because unconstrained by university regulations and caution.  Later, Mukherjee treats Craig Venter, who creates a private company to compete with the government-funded Human Genome Project, much more kindly than many commentators do, while gingerly avoiding the issue of what corners Venters allowed himself to cut by stepping outside of a regulatory regime.

At issue, however, is not Mukherjee’s failure to develop a coherent stance on regulation.  Rather, I am interested in the whole notion of self-regulation—and in the paradoxes of regulation itself.

For starters, regulation is a tough one for people because it is not full-bore permission and it is not full-bore prohibition.  If I give my teen-age son a curfew, I am regulating his behavior, but not forbidding him to go out at night, and not granting permission for him to stay out all night.  Seems simple enough in principle—but it proves very difficult in practice.  The regulation sets a clearly visible limit which (as we know from the Garden of Eden) creates an immediate and powerful temptation.

With self-regulation, then, the limit setter and the tempted transgressor have to be one and the same.  Again, it is trivially true that learning how to regulate oneself, to set and abide by limits not externally imposed, is a crucial step toward maturation.  I am hardly saying that humans are incapable of avoiding “over-doing” something.

But the case is very different when strong social incentives are in place to reward going past a limit.  That situation appears particularly relevant in any competitive environment.  So, in sports, using performance enhancing drugs or even just over-training (to the point of self-harm) are such strong temptations because the rewards for success are so massive.  Similarly, in science, where getting there first is just about everything (to echo Vince Lombardi).  And the same is true, of course, in economic competitions, where various forms of unregulated or expressly forbidden, behaviors can reap one a market advantage.

George Bernard Shaw said “all professions are a conspiracy against the layman.”  By that, he meant that professions claim to have expertise and knowledge that the ordinary person does not possess.  One of the first consequences of that claim is that professions want to be self-governed, to get out from under any external oversight.  The outsiders cannot possibly understand the full complexity of our professional tasks—and hence can only muck things up by interfering.

I was in a room full of hedge fund managers and Wall Street financial guys (none of the finance people was a woman) shortly after the 2008 election of Obama in the aftermath of that fall’s financial meltdown.  To a man, this group lamented how the Democrats were going to cripple financial markets and the absolutely essential flow of capital by coming in and ignorantly regulating things.  There was not a single iota of self-doubt expressed by this group.  They were too focused on the image of themselves as victims of innocent politicians.

In short, it is hard to believe that any profession can ever successfully regulate itself. The reward structures internal to the profession are tied too closely to surpassing limits.  After all, regulation is about trimming back, about not letting everything that is possible be undertaken.  And the logic of the profession is to push relentlessly forward.

But, as Mukherjee’s anecdote about Nixon (making him sound remarkably like Trump) reminds us, are the politicians really in a better position to do the regulating?  When we watch the spectacle of our politicians denying climate change, endorsing nut-case theories about vaccinations and autism, and calling for a balanced federal budget and a return to the gold standard, aren’t we forced to agree that their ignorance should not be allowed to cripple the experts’ knowledge?

How, in other words, are we to establish true accountability?  Some, of course, say we should rely on markets for that.  But the market’s decision is always (even when it does come—and it does not always come) after the fact.  The harm has been done.  Regulations are often also created after the fact, to prevent a disaster happening a second time. But regulations are also anticipatory.  My curfew for my teen-age son was not motivated by any particular incident.  It is just a rule that seems to fit the circumstances—and some possible issues.  So regulation is not just in order to hold people accountable; it is also about prevention.  Don’t do this because it will have bad consequences.

That still leaves the question of who is the best judge of possible bad consequences.  I don’t think the profession itself is.  Professionals have their minds fixed on other things—on success as their profession defines it, on pushing the limits, on following a line of thought or action out to all its logical and possible conclusions.  But no one else seems to be in a very good position to set the boundaries.  We reach here a fundamental dilemma in democratic governance.  The professions need to be governed by a demos that actually lacks good credentials for doing the governing.  We are stuck, I would say, with trial and error, with repeated attempts to regulate that will be resisted by the professions and yet still must be enforced, with (hopefully) continual revision as some regulations prove salutary and others harmful or useless.

Regulation will also have to be dynamic—no once and for all fix will ever be achieved—because the attempt to evade regulations will be endless, as will be the emergence of new possibilities and innovations. (I scorn the oft-heard conservative argument that regulations are counter-productive because they generate evasion.  No one uses that argument against the prohibition of murder or the regulation of prescription drugs.) Some of those innovations will have arisen precisely as mechanisms to evade regulation.  But others arise just because human ingenuity knows no bounds and things undreamed of in the current regulatory scheme become possible.  Trying to tailor old regulations (for radio and TV) to handle new media (the internet), to take just one example, is a fool’s errand.  But in an atmosphere of knee-jerk hostility to regulation, devising a whole new regulatory framework is almost impossible.  The result is the current patent mess, which cries out for a reform that seems beyond our political capability to enact.

So let me conclude by considering that wide-spread hostility to regulation.  Every one of us has experienced it: some bureaucratic barrier placed between us and just getting the job done.  “Enough to make me a Republican,” was my exasperated way of responding to HR hurdles in the days when I was trying to hire staff for the Institute that I directed.  It was fairly easy (in almost all cases if one could look at the thing impartially) to see why a certain regulation was in place, what possible abuse it was trying to guard against, but that didn’t lessen the hassle of having to abide by the regulation.

But it is also worth thinking about just what regulations disallow—or enable.  Our heroic individualists always claim regulations stiffly ingenuity, creative thinking, going beyond the current sense of what is thinkable or doable.  Nonsense.  Just like those who talk most loudly about risk are actually risk averse (businesses make bets when the odds are stacked in their favor), what really irks most people about regulations is that they assault their habitual ways of doing things.  Many of those HR regulations were about insuring a diverse applicant pool and avoiding the nepotism and unconscious biases that lead to all-white offices.  Similarly, requiring that professors deposit their syllabi with a central office prior to the semester’s start means they must actually plan their classes and inform their students about the course’s content and expectations.  Regulations are ways of intervening in shoddy professional practices, of trying to not let habit rule the roost.

And regulations are also reminders that you, perhaps, are not the best judge of your performance.  In my corner of the professional world, college professors, there is deep resentment against the introduction of notions like “learning outcomes” and attempts to measure whether those outcomes have been attained by students.  Finding the right metrics is, no doubt, very difficult, but there is absolutely no denying at this late date the well-documented findings that lectures and reading are a poor way to transmit information to today’s students.  But deny those findings my colleagues will.  It was good enough for them—and they are also damned sure their students are learning lots.  How do they now this latter fact?  They can just tell.

External demands that any profession actually demonstrate, actually prove, its worth can only be to the good, in my opinion.  I sure as hell don’t want an unregulated Wall Street.  So how can I, in good faith, then argue for unregulated professors? The give-and-take, the endless jostling and disputes, between the professions and those external to them that try to regulate them is never going to be resolved.  But that process is far preferable to the delusion that the profession will self-regulate.  Just recall that every time a new environmental or economic policy is bruited in our fair land, some industry group will step forward and say: “We will voluntarily adopt this standard.  Just leave it up to us.”  How many times should we fall for that ploy?

As Michael Bérubé puts it in Life as Jamie Knows It, “bioethics is too important to be entrusted to the bioethicists.”  The same goes for every profession.  It has to be kept on its toes by knowing not just that outsiders are watching, but also by knowing that outsiders wield regulatory power to intervene in its practices.  And when such interventions come, let the fight begin.