“The cult of the market” spreads the gospel of the commodification of even the most necessary things in life, the transformation of all activities into goods and services exchangeable on the free market.  That this has so far, where implemented, caused ruin, has not dissuaded that cult from continuing to turn the world into an unlivable marketplace.  Thus, Western societies go the way of the old Eastern bloc, likewise driven by ideologues into self-imposed poverty and oppression.

“The cult of the expert” seemed, at the middle of the twentieth century, to be the safe bet; it was a commonplace that politics, economics, and public policy can only be grasped by the educated and public-spirited.  The public is reduced to choosing between the favorite of their betters.  This is an understanding of government that has been classed as “elite democracy,” though I am not sure what exactly is democratic about it.  This cult may seem to have been supplanted by that of the market, but in truth it has been merely transferred from the public to the private sector, where experts yoked to oligopoly will produce universal prosperity.

Hind summarizes our problems well:

Between them, the cult of the market and the cult of the expert encouraged citizens to think of themselves as political bystanders.  Either committees of experts or the boards of companies and their atomised consumers were to make decisions.  Both schools of thought ruled out open deliberation between equals on the basis of universal participation.

The ruling ideas of any society are reflections of the needs of the ruling class, and so the “common sense” of our time has served the needs of the financial, corporate, bureaucratic, and state classes.  Namely, the ideological fantasy that markets can provide most or even all of our needs, and that political, economic, and social questions are too complex for all but the most committed experts.  But the economic and other crises of our time has demonstrated the utter falsehood of these ‘cults’.

The beginning of our solution is found in what Hind calls the “principle of assembly.”  The assembly of the people is the basis of all democracy.  The essence of democracy is conventionally said to be the rule of the majority.  Majority rule is important, but the essential quality of democracy is deliberation, the active public reasoning of equally situated persons.  Such collective thinking is the vital force and foundation of any society, and the reason why public assemblies as have appeared all over the world in the wake of the Egyptian Revolution and Occupy Wall Street have been seen as so threatening to the social organizations that have outlived their usefulness.  Assembly is not only the motor of society, it is the lifeblood of human liberty.

However, many of us continue to cling to the ideological promises of the past, blind to all that they could lose.  As Hind wrote, we need a new “common sense.”  But this common sense, I would say, is simply a return to the obvious, a common sense that has animated the struggles for equal liberty since somebody first wore a crown.

(Dan Hind is also the author of The Return of the Public, in which he advocates a democratic system of media, which I also recommend, and The Threat to Reason.)

The origins of judicial review have an eminently democratic pedigree.  English courts claimed the right to review and judge the legality of the actions of the monarch and his officers.  This remains the case today, as the United Kingdom lacks any law more fundamental than that of Parliament.  The federal government and the states of the United States have constitutions, however, so the possibility came about that ordinary laws may conflict with constitutional law.  In the post-Revolutionary United States, conflict ensued as to who would decide when law violated the federal constitution.  Some states claimed that each state had the right to strike down, or “nullify,” federal law; this view is historically linked with the defense of the slave-economy of the South, notably of the political position of John C. Calhoun.  The other view is the one that won out, that the federal judiciary alone would have the power to determine the constitutionality of law.  This principle was established by the 1803 Marbury vs. Madison case by John Marshall’s Supreme Court.  Of course, as discussed on this website, the Founders (and near-Founders) of the Constitution did not have the concerns about the lack of democracy that judicial review presents.

The solution to the dilemma of judicial review is to involve the public in the process, of course.  I can imagine several options, any of which can be combined.

First, we can democratize the selection of the Supreme Court.  Currently, Justices of the Supreme Court, along with all federal judges, are appointed by the President and confirmed by the Senate.  Not only is this an undemocratic process, it has resulted in a politicized Supreme Court composed of partisan dunces.  To introduce a democratic element to the selection of Court Justices, and to reduce the partisan nature of the selection process, we can import Germany’s method of selecting its Constitutional Court.  While German federal judges are a professional corps, the members of the Federal Constitutional Court are elected by two-thirds approval of the two houses of the federal parliament sitting together.  A simple majority would probably result in a significantly more partisan court, while election by the people’s representatives is democratically superior to the advancement of professional judges or appointment by the president.

Second, the legislature could have the opportunity to override the results of judicial review, much as Congress currently has the power to override a presidential veto by two-thirds of its membership.  However, the ability of the legislature to override presidential actions may be hampered by the partisan division of a legislature, so might this be the case with the override of a Court decision.  Technically speaking, Congress currently has the right to determine the Court’s appellate jurisdiction – that is, the sorts of appeals that can come before the Supreme Court (Article III, section 2 of the Constitution).  This means that it could easily remove a law from consideration by the Court, by a simple majority.  But I believe that this has only occurred once, during the presidency of Andrew Johnson.

Third, all judicial reviews could be referred to a public vote for approval or disapproval.  However, the problem with such referenda is that they also have a democratic deficit.  While referenda seem to turn the public at large into a great legislative assembly, that is exactly what the public is not.  Essential to democracy is the act of deliberation, of citizens providing publicly admissible reasons to one another as to the aims and goals of the state.  People are not in such a position in the voting booth.  So, instead, or at least as a complement, we might have a National Jury called for the judicial review of statutes.  A National Jury would be composed of a significant (several hundred) number of citizens chosen by lot to attend the deliberations before the Supreme Court regarding the constitutionality of a particular law.  Thus it would be a representative sample of citizens placed in a deliberative context who would be determining the legitimacy of law.  In a weaker version of this same principle, the opinions of the Jury might be merely advisory to the public before a referendum on the matter.

Finally, we can simply transfer the power of review to another branch altogether.  The Assembly of classical Athens, in its mature democracy, submitted all proposed legislation to the “nomothetai,” a commission of citizens selected by lot, to ensure that the proposed legislation would be compatible with existing legislation, as well as ensure that all legislation was consistent.  A similar tribunal of persons could be called to examine existing legislation for its compatibility with constitutional law.  A more modern example would be the “constitutional councils” that exist in many nations, most notably France, in which appointees of the other branches of government review legislation for constitutional compatibility.  The distinction between such a council and judicial review is that the council reviews legislation before it takes effect, rather than wait for a challenge to that law.  However, we would have to democratize the composition of such a constitutional council for acceptance in a democratic republic.

The decisions of the Supreme Court regarding constitutionality often cause hyperventilation about the fall of democracy, but I remain agnostic about the harm it does to democratic institutions.  The dilemma judicial review poses to democracy can be dissolved by making the process itself democratic.

Fortunately for our collective sanity, there has been a groundswell of support for justice for the Martins.  But there are still those who wear their racist psychopathy on their sleeves, and claim that Zimmerman acted appropriately.  Geraldo Rivera, for example, claimed that Martin had some culpability for his own shooting, as he was wearing a hoodie, which is some sort of sign of criminality, in Rivera’s world anyway.  Some sort of human detritus named Dan Linehan, writing at the Wagist has claimed that Martin may have smoked marijuana!  Further details from Zimmerman’s attorneys include claims that Martin broke Zimmerman’s nose, and a Zimmerman friend said that Zimmerman had been in fear of his life.

Here are a few obvious claims that these cretins should be made aware of:

1. Lethal violence is only justifiable when lethal violence is offered.  If Martin had actually been armed with a gun, rather than candy and iced tea, then using a firearm might be justified.  But he was unarmed, so no amount of other details can justify his fatal shooting.  Nevertheless, this is lost on some people, so….
2. You can’t kill children, or people more generally, for what they are wearing.  Martin could have been wearing literally anything or nothing, and that still cannot justify the shooting of an unarmed man.
3. You can’t kill marijuana users, or as Linehan fatuously concluded, a “drug dealer.”
4. No amount of after-the-fact details of Martin’s character can justify his homicide.  The media seems to enjoy digging up the dirt about a murdered child, as if the fact that he wasn’t a saint justifies his killing.  But nobody is, and it doesn’t matter, because he was shot to death while unarmed, offering minimal violence.
5. George Zimmerman’s subjective state does not alter the moral and legal norms of a murderous act.  One of Zimmerman’s friends says that “he couldn’t stop crying” after the shooting.  That’s good – he did murder someone after all.  The fact that he was fearful for his life does not change the facts of the situation.  If you’re carrying a pistol around in your car in your gated community, you’re probably a coward.

But just as nothing about Martin’s character would justify his death, nothing about Zimmerman’s character justifies his arrest.  What does justify Zimmerman’s arrest is that he shot an unarmed 17-year-old in the street, whom he considered “suspicious” for what can only be racially-motivated reasons.

The story is poorly written, but seems to combine the work of Cornell University psychologists David Dunning and Justin Kruger and the German sociologist, Mato Nagel.  The initial premise comes from the psychological finding that we don’t really recognize our own incompetence.  People are typically subject to self-serving biases about our own abilities, and we rate ourselves as better at tasks than we really are.  Most people will claim to be an “above average” driver, for example.  This blindness to our own poor abilities leads us to be unable to recognize that same incompetence in others.  This led Mato Nagel to apply these findings to what we call democracy (a pale shadow of the real thing).  If most people have even randomly distributed leadership abilities, people’s inability to recognize our own incompetence means that the voting population won’t accurately judge leadership qualities and good ideas.  Nagel claims that a democracy can only prevent lower-than-average leaders from being elected, and don’t elect the best possible leaders.  Of course, this is just science journalism from Yahoo News, so who knows what the scientists actually said.

Faulty Assumptions

The argument has an ancient pedigree.  In Plato’s Republic, Socrates argues that, just as you would ask a doctor about your health, you should ask political experts about how to rule a state.  As most people aren’t such experts, the people are not fit to rule (whether these were the opinions of the real Socrates or just Plato’s version is unknown).  This view, then as now, rests on a faulty assumption, however.

The act of voting is not an attempt to correctly identify already existing objective factors such as who would make the best leader, but rather an expression of what a citizen wants to see realized in their society (within the constraints imposed by fundamental principles).  The basic assumption made, that the rest of us are simply here to elevate the best leaders to power, is not characteristic of a genuinely democratic people.  In fact, that it goes without comment or question is a sign of just how far towards an authoritarian ideology Westerners have degenerated.  But we have plenty of evidence all around us for that.

The Real Problem: “Information, Information, Information!”

The problems of democracy have real institutional causes.  Since the system is for people as we are and not as we wish them to be, it’s the system that is flawed.  People are capable of making rational decisions given access to appropriate information.  One of the main flaws in modern democracy (beyond the fact that it is not democratic) is that the information available is inappropriate and the decisions to be made diffuse.

Political scientist John Gastil writes clearly about the issue in his book, By Popular Demand.  Good information on the sorts of questions that people are asked to answer by political institutions is hard to come by.  The media directs public attention and thought about issues in a manner that does not induce rational analysis of political positions and office-holders, full of broad strokes over high-ratings topics and scandals that have little to do with policy.  Adrift in a sea of bad information, voters rely instead on various cues, such as party affiliation, character evaluations, or whose name we recognize.

So, it is true that people make poor political decisions.  However, we should not misdiagnose the illness.  The problem is not that people are incapable of identifying the leaders or policies that are best for them.  The problem isn’t even that people can’t think rationally about political issues.  The problem is that we are awash in too much of the wrong information to use our reason effectively.

The solution is in institutional design, of course.  Last week, I offered my own method for improving the electoral mechanism, participatory representation.  In participatory representation, as in participatory budgeting, the people acquire relevant political information by directly participating and constituting the decision process.  In the process of deliberation with their fellow citizens, political questions become concrete; they pass from being abstract questions represented by names on a ballot to seeing the actual effect on other citizens.  Part of this process involves establishing a delegated electoral commission that collects and delivers information to the voting citizen, and whose high degree of accountability means that citizens have control over the sort of information provided.

John Gastil has an institutional design with similar aims to organize and deliver information to the voter so that we could improve the expression of our public will.  His institutional designs rely on experiments in political deliberation, rather than focusing on participation.  Political deliberation experiments demonstrate that randomly selected panels of persons are capable of drawing well-reasoned conclusions about complex political, economic, and social issues, when given access to relevant and appropriate information about the decision to be made.  Gastil’s solution to mass democracy’s information problem is to form various such panels that deliberate about candidates for office, proposed bills and initiatives, and other policy questions.  The resulting judgments are then provided in voters’ guides and in the media to provide the appropriate information needed for voting.

In any case, while it is clear that democratic institutions need to be redesigned for serving human beings with real limitations, it is not a matter of being unable to identify our betters when we see them.

What Do We Want to Accomplish?

We want our representative institutions to realize at least the following four features in their design.  Clearly, the first thing we want to realize is the actual representation of the public by their representatives.  There are many ways that we may understand the concept of “representation.”  My meaning simply is that the representative should advocate what his or her electorate wants the representative to advocate, acting as they would collectively act.  But the only way for the representative to have the incentive and information to act in such a manner is through a popular and participatory mechanism.  The representative needs to know the real common will of his or her constituency, and have the incentive to do what that constituency wants.

Next, we also want the electoral process to be participatory.  Through the mechanisms of participatory representation, the citizenry exercises its political power and actively forms a common will and holds the representative accountable to that common will.  Under the current electoral representative process, those organizations that have their will represented in Congress are those who are organized, noisy, and wealthy (though mostly wealthy).

Third, a common popular will can be actively generated only through people reasoning together, and thus we need participatory representation to be deliberative.  In recent decades, political philosophers and scientists have pointed out that democracy involves not simply rule by the will of the majority, but also the formation of a common will through deliberation among participants.  Deliberation is a form of public discussion in which common beliefs are established by reference to common values, or, in the case of the democratic state, reference to the public values that guide state action.  To deliberation we can contrast other sorts of rationality, such as strategic negotiation, in which participants trade favors and services with the aim that their own personal good is maximized, rather than the public good sought in deliberative rationality.  As previously established, our current representative institutions operate according to principles of strategic negotiation among representatives that maximize their chances of reelection and campaign contributions.  Our model of participatory representation, however, seeks to not only force representatives to engage in genuine deliberation, but to foster deliberation among citizens by providing the institutional space for them to do so.

Finally, we want participatory representation to be viable and efficient.  For the institution to be viable would mean that its procedures and outcomes do not prevent it from continuing to work in the future.  For example, if participatory representation produces powerful demagogues who then wrench power away from the people, then the institution would not be viable.  For participatory representation to be efficient would mean that we derive the most benefits from it with the least burdens.  By such efficiency I do not merely mean monetary benefits and burdens.  In fact, participatory representation may be more expensive than current electoral representation (though with upcoming presidential campaigns costing over $1 billion, that would seem hard to believe).  “Benefits” could include not only monetary costs but also freedom and equality, sociality and conviviality, and rationality and deliberation, all values which I believe would be realized through participatory representation.  “Burdens,” meanwhile, might include bureaucracy, opportunities for elite formation and capture, demagoguery, and hierarchy, all of which I intend participatory representation to at least minimize.

The Tools for Participatory Representation

Recall that the principal problem with current electoral representation is that the public does not have a pre-existing common voice that can effectively speak to its representative.  The gulf between the representative and the represented is filled by what I termed “mediating factors,” because they get between the public and their representative.  These factors include political parties, private campaign funds, lobbyists, and other organized interests usually not representative of what people want and expect.  Existing mediating factors distort the information to representatives regarding what the public believes to be in its interests, as well as pervert the incentives that are supposed to lead representatives to represent.  The solution is to institutionalize a popular, participatory mechanism that mediates between the representative and the represented.

Participatory representation relies on the organization of local communities.  We have seen such an institutional design in the primary assemblies of the Girondin Constitution, the Venezuelan communal councils, or participatory budgeting.  Such local assemblies become the forums for popular deliberation and the selection of candidates to stand for election.  While formal communal councils would be most convenient, their formation also requires a state that is committed to participatory democracy and many years of public investment in coaxing people to create and become accustomed to managing their own affairs in communal councils.

Because organized communities do not already exist in the United States for the most part, a good deal of community organization would have to be accomplished.  In the absence of communal councils, each electoral district would be divided into its ‘natural’ communities, neighborhoods to which people feel some sort of pre-existing membership.  In these communities, assemblies open to everyone are held.  Further open assemblies for the entire district would also be held to discuss particular issues.

Each such open assembly would elect short-term delegates to a council or commission for the entire district.  Note that “delegates” are different than “representatives,” at least as used in some political literature.  While a representative is more or less free to act in what he or she believes to be in the best interest of his or her constituents, a delegate speaks as they are told to speak and votes as they are told to vote.  Delegation relies upon the delegate being able to communicate with and receive instructions from the body of persons sending the delegate.  Delegation is another democratic ideal, like a great people’s assembly, is impossible to achieve in a modern nation-state.  But it is achievable on the small scale that we are dealing with here, with one or two delegates representing local assemblies at an “electoral council.”  If each local assembly or communal council is composed of six hundred people, then a congressional district of 600,000 would generate an electoral council of one thousand delegates.  This is crowded, but manageable – for its business, the council can form committees to perform its tasks.

Electoral councils would possess a number of advisory and administrative tasks during the participatory election cycle.  First, its committees would subject candidates to scrutiny and questioning and distribute the results to the district.  Second, the council’s committees would manage the actual election process.  These first two duties are described below, in the process of participatory representation.  Finally, its committees would monitor, collate, and distribute the voting record of the sitting representative.  While voting records are currently available, there is little the individual citizen could do to keep track of their representative’s pattern of voting and compare that record with the representative’s stated positions and promises.  The electoral council is in a position to do that.

The Process of Participatory Representation

The process of participatory representation is modeled on the process of participatory budgeting.  Participatory representation occurs over the course of a year in the following steps:

1. The local assemblies or communal councils begin by identifying the issues they find most pressing, and nominating candidates from among their number.  After several meetings, the assembly compiles a list of electoral candidates in the community.  Each candidate would have to have some minimum of support from the assembly – let’s say any five percent.  A delegate is then chosen to deliver this list to the first meeting of the electoral council.
2. The electoral council meets and compiles a total list of candidates for election.  The council forms its committees and begins screening and scrutinizing each candidate.  The first candidates to be struck from the list are the unwilling and the ineligible.  Just as in the local assemblies, the candidates that make the final cut will have some minimum support from the council.  Let’s say any fifteen percent of the council, so that the list of candidates.  Between meetings of the council, delegates should be returning to meetings of the local assemblies to deliver information and receive instructions.  By the middle of the year, the electoral council should have pared the list down to a smaller but still substantial number of candidates.
3. The initial list of candidates is returned to the assemblies for consideration.  The candidates make the rounds and argue their case.  Voters will then hit the ballot box in a district wide vote.  In this vote, the constituency is selecting the final five candidates to stand for election at the end of the election year.  Some sort of proportional method of election would be appropriate, with each voter selecting first, second, etc. choices, and then allotting votes to each candidate by this method.  The sitting representative (congressional or state assembly) is also on the ballot, and he or she may not be permitted to stand for election again if he or she does not receive sufficient votes for nomination.
4. The electoral council publishes information on the final five candidates, organizes debates, and disburses public campaign money in an equal fashion.  For the democratic health of the electoral council, let us suppose that new delegates are chosen for the council around this point in the election cycle.
5. The people vote on election day for one candidate, who must have an absolute majority (over fifty percent) to be elected.  If no candidate receives an absolute majority, there can be a run-off.
6. The process begins again a year before election day.

This electoral procedure creates an information system between the representatives and the represented by creating a participatory oversight body (the electoral council) and a continuous deliberative process.  This information system is paramount.  Our current representatives get away with murder because they know we can’t keep track of what they’re doing.  Even though there are voting records, there is no one who organizes and interprets those voting records.  We can’t see how the voting record matches up with the promises of the representative.  The media does this only for political parties as a whole, and for the president, but this does not help us to hold our own individual representatives accountable.  For them to behave themselves, they have to know that we know what they’re doing, and that we know that they know.

The public will is also constructed through this process.  Public, face-to-face deliberations drive each citizen towards a common will, reducing the multitude of varying unconsidered opinions and interests towards positions that a majority will come to hold.  The nomination process increases the likelihood that candidates will emerge from the popular classes, and who are more likely to understand what is in the popular interest by being a member of those classes.  Candidates for election in this process show their worth by their understanding of the general trajectory or tenor of the public discussion.  By being forced to participate in public deliberation and reasoning, and being held continuously accountable, electoral candidates lose their ability to manage and balance the array of special interests.  Public deliberation causes the existing special interests to erode into a more general interest for the public good.  And representatives will have to bow to it.

But is This Process Viable?

Why, you might and should ask, would this system prevent the reappearance of devices of elite capture?  Why wouldn’t people form political parties to advance their particular interests?  Can it last?

I think I am correct to assume that people are not actually divided up into preexisting simplistic political outlooks.  It’s a commonplace today that Americans are divided into liberals and conservatives, but this is more of an effect of the social and political system than the cause.  The perception we have of each other as Democrats and Republicans is created by the contest of political and economic elites in their contest for electoral and bureaucratic power.  The “liberal versus conservative” cultures and frames that we see in each other are manufactured by political party elites.  They need these frames for the discipline of the respective partisans, and those partisans become those stereotypes in loyalty to the political party.  Participatory representation makes political parties redundant by removing their purpose – to nominate, fund and discipline representatives in the service of the party.  Without the political party to manufacture political distinctions, I would wager that people will generally be able to grasp what is in their genuine interest, and, through deliberation, be able to determine what is in the public interest.

None of this is to say that people really don’t have all the same interests.  Particular sections of society have distinct and conflicting interests on the basis of the roles played in and across institutions.  Let’s be honest: it’s the 1% versus everybody else these days.  But “everybody else” does not see it in such easy terms, because “everybody else” consists of distinct and conflicting interests as well.  So why can’t these interests form a multitude of mediating organizations that makes the participatory representation into a sham?

Deliberation is the key to eroding the distinctness and conflict among the various interests of society.  Participatory representation brings people together to achieve a real, concrete purpose that they can only achieve together.  Collective, public deliberation is necessary to achieve this real purpose – to send a representative to the state or federal capital to get public goods and services.  The very process of deliberation, of meeting and talking with other persons living in different social positions and institutional roles transforms the perspective of each deliberator» .  Such a process of real face-to-face mutual justification of needs and values informs and erodes our unconsidered political, social, and economic perspectives.  Not only a particular policy prescription, but a whole direction for policy, emerges from such discussions.

The problem with any system of electoral representation is the lack of means of forming and delivering the public will, and motivating the representative to obey such will when seated in the representative assembly.  In the absence of such means, the organized interests of society interpose themselves and organize the public to their own ends and not those ends of the public.  The political party, ostensibly the means by which people organize political platforms and control representatives, are really the instruments of elite organized interests.  The solution is to build the means of representation directly into the electoral system.  “Participatory representation” is a proposed institutional design that provides the means of the public will being created by the people themselves, and directly communicating this will to their representative.  Beyond the mere election of the representative offered by elite organized interests, the people themselves inform and motivate their representative by nominating their own candidates and forcing those candidates, as well as the subsequent representative, to engage in a broad, bottom-up process of deliberation.

Recall that freedom is the fundamental right from which all other rights flow.  For us to be able to claim that any individual is free, they must in fact be able to pursue, with minimal social interference, what they themselves conceives of as what is good, insofar as this does not interfere with others’ ability to do the same.  Furthermore, this right must be real and effective, and not merely formal.  That is to say, an individual should be able to actually pursue their good, not merely in the abstract.  People cannot pursue their conception of the good without having their basic needs – for food, water, shelter, medicine, and social access – met.

People in a free society have duties as a flip side of having rights.  My right to something is defined as your duty to allow me to that thing.  We must keep that in mind when we are told that certain public requirements are a bar to liberty.  While we here at Philosophyhelmet deny the legitimacy of our undemocratic government, in principle a free people will still have duties to one another as citizens.  This includes the duty to provide for one another’s basic needs, so that each citizen may effectively exercise their freedom.

As Trout writes, “In 2004, a total of 1,316 motorcyclists in the United States suffered fatal crashes.  Had all of them worn helmets, 671 of them would have been saved.”  Helmet laws have succeeded in “reducing fatalities by 15 percent in Washington and by 37 percent in California.” (J.D. Trout, The Empathy Gap [New York: Viking] iBooks)  The numbers are indisputable – there is no doubt that helmet laws would save lives.  But, as Trout himself further notes, many dispute the validity of helmet laws on the grounds that they violate human freedom.  Laws exist only to protect our liberty from one another, goes the argument, and the refusal to wear a motorcycle helmet does not injure the liberty of another.  Throughout the work, Trout rejects paternalistic social institutions.  After all, there’s a lot that we really want to do, but fail to do because of our universal cognitive limitations.  Thus, it’s not really paternalism when a social institution is helping us to do what we really want to do, such as saving for retirement.  But he really struggles to justify helmet laws as non-paternalistic.  I think that everyone can understand that not wearing a motorcycle helmet is imprudent.  But helmet laws are not merely helping me make a better decision like some of the other recommendations in the book.  Helmet laws require wearing a helmet, and if you disobey, you are punished.  That’s not helping you make a better decision, that’s making the decision for you.  This is what makes helmet laws paternalistic.  A non-paternalistic helmet law would allow me to have the option of not wearing a helmet but encourage me to attend to the fact that it’s a bad idea.

I am assuming here the justice of the argument against paternalism.  While we surely want to improve the conditions of our society, and work to realize our various values, we do so within the constraints of basic principles of justice.  I view the primary principle of justice to be that each person has a fundamental right to an equal degree of liberty.  Thus (to skip ahead in the argument), the society constrains us only in order that we may each enjoy the greatest possible equal liberty.  It’s a good model of justice that has sustained some branches of political philosophy since the Enlightenment, even if our actual societies fail to make the principle actual.  In any case, we can make laws to improve society within the limits of such a first principle, and paternalistic laws violate that principle.

Trout responds to the paternalism charge that the death of a helmetless motorcycle rider does not only affect the motorcycle rider.  The death of the rider means financial and emotional hardship for family and a burden on medical resources.  While true, this seems to me to be stretching the notion of an “effect” upon others.  It would seem ridiculous to say that other people need to be protected from my riding without a motorcycle helmet (I wouldn’t actually ride a motorcycle).

However!  Society can and does demand that the costs to society that people create by performing certain actions are “internalized”.  In economic parlance, benefits and burdens that are taken on by others are “externalities”.  So, when someone buys a car, the seller gets the money, the buyer gets transportation, but everyone else gets traffic congestion, pollution, and the suburbs, none of which the buyer is paying the rest of us for.  Since these are all costs to society, they are negative externalities.  Likewise, helmetless motorcycle riding is a cost in medical resources to society.  It seems only fair to ask those who create costs to bear them.  Hence, Arthur Pigou, the economist responsible for the concept of externality, recommended a tax structure that “internalize” costs back to the generator of such costs.  Thus, cigarette smokers bear the future costs of caring for their lung cancer when they pay taxes on cigarettes, drinkers pay for the damages of alcohol consumption by paying taxes on alcohol, etc.  Unfortunately, polluters do not yet have to pay for their pollution, nor financiers for the costs of speculation.  So-called “Pigouvian” taxes force the users of socially burdensome goods or services to pay for those burdens to the rest of us.

We can apply the same method to helmetless motorcycle riding.  One might reply that that’s exactly what a helmet law does – the fine imposed internalizes the cost of helmetless riding.  I would recommend a point of payment that does not involve legal punishment.  Instead, motorcyclists who wish to have the option of going without helmets can pay more for the probable burden of doing so when they pay their motorcycle license.  They would be given the statistics on the risks of helmetless motorcycling, written in a manner that makes the information most real to them, and receive a special mark on their license and license plate so that highway patrols know to leave them alone if the motorcyclists decides to go without their helmets.  Everyone else would be subject to the legally required punishment, and informed that they could pay more to not be required to wear their helmet.  Fines for illegal helmetless motorcycling and the fee for licensed helmetless driving would have to be adjusted so that one is not privileged over another.  This would better reflect the aim of decreasing motorcycle fatalities without paternalism.

First, I have been asked “why Wall Street?  They don’t make the rules – why not Washington?” (thanks Mom!).  Well, that’s not actually true.  It would be a mistake to see the State – the institutions of formal law-making and the coercive enforcement of those laws – as the only center of power in a society.  In fact, it is rarely the actual place of power at all, but rather the source of legitimation of power.  To be less abstract, the power of the financial sector has risen to consume any independent political power.  Employees of the big banks rotate in and out of the financial regulatory agencies like the Securities and Exchange Commission, and now most of the President’s advisors come from Wall Street, particularly Goldman-Sachs.  This is not only true in the United States, but also the European Union, where financiers are being installed by the European Central Bank as the prime ministers of nations like Greece and Italy, all the better to vacuum up the public wealth into private banks.  The State, whether in the United States or in Europe, has become as much an appendage of financial institutions as anything. The fact that trillions can be shoveled into the banks and nothing can be spared for the actual human beings of those societies is only the most dramatic evidence of this fact.  That’s why Wall Street is being occupied.

So why “occupy” then?  Why seize public places, mostly parks, and live there until forced out by pepper spraying thugs?  This is not a new phenomenon, actually.  The ancient Romans offer the first recorded such political activity.  In the class-based republic of Rome, the aristocratic patrician class possessed the balance of power.  When the plebeian class – those artisanal workers and shop-owners who ran the city – could not find justice in the Roman State, they simply walked out of the city and lived in the countryside until the patricians gave in.  This was called secession plebis, or “the secession of the plebeians.”  Labor strikes carry the same reasoning.  The plebeians, the workers, and the “99%” are all the people that actually make society work.  The patricians, managers, and financiers are all parasitic on those lower classes.  When the essential party walks away, the whole motion of society, through the operation of its institutions, will grind to a halt.  That is the purpose of occupying – to disrupt the operation of the institutions until justice is achieved. We make up institutions, after all, by continuing to do what is expected of us.  When enough people decide to stop doing what is expected of them, the institution stops functioning.

But tying up an unjust institution by occupying is great, but what do Occupiers want in place of those unjust institutions?  This was the continuous question of every political pundit who shoved their meaty faces into a television camera: “What do they want?”  As if a collection of strangers would have a ready list of demands for change.  And some did, with Occupy Wall Street releasing a declaration of grievances, and one its groups releasing a proposal to form a National Assembly in July of 2012, while Occupy Washington DC proposed an alternative budget that would reduce the deficit in two years while increasing social spending.

Mostly though, the Occupy movement refused to issue demands.  On the one hand, there was strategy involved, as releasing demands and solutions would allow the movement to be pigeon-holed, mocked, and ignored by an elitist punditry, arrogant politicians, and a lazy press.  On the other hand, many in the movement trumpeted their lack of demands as something to be lauded.  “We are our demands,” they would say.  Well, if that’s the case, I think we can figure out what demands follow from the movement itself.

First, Occupiers want equality.  Mostly, Occupiers have been focused on the inequality of income and wealth.  Since at least the Enlightenment, a rough equality of wealth has been understood as being necessary for a decent society, or a free society, or a democracy.  Political philosophy has had some difficulty in precising what sort of equality we actually understand as valuable, whether it’s an equality of opportunity, or resources, or well-being, or freedom (Andrew Levine has a great discussion here).  However, the results are going to be pretty much the same for the United States today: some redistribution of wealth and income has to occur for American society to continue to function.  The results of a greatly unequal society are bad for everyone.

Second, the first thing that Occupiers do when the take over a public space is to form a General Assembly based on a modified consensus rule of achieving 90% agreement (I’ve expressed my qualified skepticism on this site).  Thus, we could conclude that one thing that the 99% desire is popular democracy, the capacity of the people to make decisions directly for themselves, in any social context they may find themselves in.  Thus, one might hope that, in the coming year, Occupiers spread the Assembly model throughout communities where state and municipal bureaucracies make decisions regardless of what the people want.  Implicit in the self-management of occupied public spaces is a demand for a reconception of the public.  The conflict between the Occupiers and the police is partially about who controls public space, the actual people using the space, such as the Occupiers, or the State, as represented by the police.  Whereas in modern societies, the State claims the right to manage public property, in a popular-democratic society, the users, the consumers, and the producers of the public property ought to manage the space together as an open common property.

Finally, as discussed above, the targeting of Wall Street as the capital of the Occupy movement pretty clearly represents an assault on the power of finance in government. Wall Street is the symbol of an extractive, parasitic force on the real production of wealth in the United States and the world, even though finance has other headquarters (the City of London, for example).  The financial institutions can be understood as being bad from a variety of perspectives.  If you are a supporter of capitalism, then you should be opposed to the financier as a collector of economic rent and not profit.  The capitalist at least puts forward some risk in order to collect profits, but the rentier simply possesses a claim on the wealth of others.  If you are a socialist, then finance capital is the planning agency of the capitalist economy.  If you simply believe in democracy, then such vast accumulations of wealth and power is unconscionable.  For many Americans, however, the enmity towards finance is simply the realization that financial recklessness has destroyed people’s jobs, homes, health, and country, and that Americans are sliding further into both private and public debt to keep the 1% afloat.

What happens next?  The Occupations have been assaulted and many routed by the police in most of the major cities, though the particular Occupations live on as organizations engaging in direct action.  Occupy Wall Street, for example, occupied the foreclosed homes and turned them over to homeless families.  A national Move Your Money day cost the largest banks over four billion in lost consumer deposits.  Discussions in the press about inequality surged – in quantity, if not quality.  The new year will see if the Occupy movement has more to offer, if it will disappear, or if it will transform into something new that can bring democracy to this troubled land.