Digifesto

Tag: immanuel kant

The diverging philosophical roots of U.S. and E.U. privacy regimes

For those in the privacy scholarship community, there is an awkward truth that European data protection law is going to a different direction from U.S. Federal privacy law. A thorough realpolitical analysis of how the current U.S. regime regarding personal data has been constructed over time to advantage large technology companies can be found in Cohen’s Between Truth and Power (2019). There is, to be sure, a corresponding story to be told about EU data protection law.

Adjacent, somehow, to the operations of political power are the normative arguments leveraged both in the U.S. and in Europe for their respective regimes. Legal scholarship, however remote from actual policy change, remains as a form of moral inquiry. It is possible, still, that through professional training of lawyers and policy-makers, some form of ethical imperative can take root. Democratic interventions into the operations of power, while unlikely, are still in principle possible: but only if education stays true to principle and does not succumb to mere ideology.

This is not easy for educational institutions to accomplish. Higher education certainly is vulnerable to politics. A stark example of this was the purging of Marxist intellectuals from American academic institutions under McCarthyism. Intellectual diversity in the United States has suffered ever since. However, this was only possible because Marxism as a philosophical movement is extraneous to the legal structure of the United States. It was never embedded at a legal level in U.S. institutions.

There is a simply historical reason for this. The U.S. legal system was founded under a different set of philosophical principles; that philosophical lineage still impacts us today. The Founding Fathers were primarily influenced by John Locke. Locke rose to prominence in Britain when the Whigs, a new bourgeois class of Parliamentarian merchant leaders, rose to power, contesting the earlier monarchy. Locke’s political contributions were a treatise pointing out the absurdity of the Divine Right of Kings, the prevailing political ideology of the time, and a second treatise arguing for a natural right to property based on the appropriation of nature. This latter political philosophy was very well aligned with Britain’s new national project of colonialist expansion. With the founding of the United States, it was enshrined into the Constitution. The liberal system of rights that we enjoy in the U.S. are founded in the Lockean tradition.

Intellectual progress in Europe did not halt with Locke. Locke’s ideas were taken up by David Hume, whose introduced arguments that were so agitating that they famously woke Immanuel Kant, in Germany, from his “dogmatic slumber”, leading him to develop a new highly systematic system of morality and epistemology. Among the innovations in this work was the idea that human freedom is grounded in the dignity of being an autonomous person. The source of dignity is not based in a natural process such as the tilling of land. It is rather based in on transcendental facts about what it means to be human. The key to morality is treating people like ends, not means; in other words, not using people as tools to other aims, but as aims in themselves.

If this sound overly lofty to an American audience, it’s because this philosophical tradition has never taken hold in American education. In both the United Kingdom and Britain, Kantian philosophy has always been outside the mainstream. The tradition of Locke, through Hume, has continued on in what philosophers will call “analytic philosophy”. This philosophy has taken on the empiricist view that the only source of knowledge is individual experience. It has transformed over centuries but continues to orbit around the individual and their rights, grounded in pragmatic considerations, and learning normative rules using the case-by-case approach of Common Law.

From Kant, a different “continental philosophy” tradition produced Hegel, who produced Marx. We can trace from Kant’s original arguments about how morality is based on the transcendental dignity of the individual to the moralistic critique that Marx made against capitalism. Capitalism, Marx argued, impugns the dignity of labor because it treats it like a means, not an end. No such argument could take root in a Lockean system, because Lockean ethics has no such prescription against treating others instrumentally.

Germany lost its way at the start of the 20th century. But the post-war regime, funded by the Marshall plan, directed by U.S. constitutional scholars as well as repatriating German intellectuals, had the opportunity to rewrite their system of governance. They did so along Kantian lines: with statutory law, reflecting a priori rational inquiry, instead of empiricist Common Law. They were able to enshrine into their system the Kantian basis of ethics, with its focus on autonomy.

Many of the intellectuals influencing the creation of the new German state were “Marxist” in the loose sense that they were educated in the German continental intellectual tradition which, at that time, included Marx as one of its key figures. By the mid-20th century they had naturally surpassed this ideological view. However, as a consequence, the McCarthyist attack on Marxism had the effect of also purging some of the philosophical connection between German and U.S. legal education. Kantian notions of autonomy are still quite foreign to American jurisprudence. Legal arguments in the United States draw instead on a vast collection of other tools based on a much older and more piecemeal way of establishing rights. But are any of these tools up to the task of protecting human dignity?

The EU is very much influenced by Germany and the German legal system. The EU has the Kantian autonomy ethic at the heart of its conception of human rights. This philosophical commitment has recently expressed itself in the EU’s assertion of data protection law through the GDPR, whose transnational enforcement clauses have brought this centuries-old philosophical fight into contemporary legal debate in legal jurisdictions that predate the neo-Kantian legal innovations of Continental states.

The puzzle facing American legal scholars is this: while industrial advocates and representatives tend to disagree with the strength of the GDPR, arguing that it is unworkable and/or based on poorly defined principle, the data protections that it offer seem so far to be compelling to users, and the shifting expectations around privacy in part induced by it are having effects on democratic outcomes (such as the CCPA). American legal scholars now have to try to make sense of the GDPR’s rules and find a normative basis for them. How can these expansive ideas of data protection, which some have had the audacity to argue is a new right (Hildebrandt, 2015), be grafted onto the the Common Law, empiricist legal system in a way that gives it the legitimacy of being an authentically American project? Is there a way to explain data protection law that does not require the transcendental philosophical apparatus which, if adopted, would force the American mind to reconsider in a fundamental way the relationship between individuals and the collective, labor and capital, and other cornerstones of American ideology?

There may or may not be. Time will tell. My own view is that the corporate powers, which flourished under the Lockean judicial system because of the weaknesses in that philosophical model of the individual and her rights, will instinctively fight what is in fact a threatening conception of the person as autonomous by virtue of their transcendental similarity with other people. American corporate power will not bother to make a philosophical case at all; it will operate in the domain of realpolitic so well documented by Cohen. Even if this is so, it is notable that so much intellectual and economic energy is now being exerted in the friction around a poweful an idea.

References

Cohen, J. E. (2019). Between Truth and Power: The Legal Constructions of Informational Capitalism. Oxford University Press, USA.

Hildebrandt, M. (2015). Smart technologies and the end (s) of law: Novel entanglements of law and technology. Edward Elgar Publishing.

legitimacy in peace; legitimacy in war

I recently wrote a reflection on the reception of Habermas in the United States and argued that the lack of intellectual uptake of his later work have been a problem with politics here. Here’s what I wrote, admittedly venting a bit:

In my experience, it is very difficult to find support in academia for the view that rational consensus around democratic institutions is a worthwhile thing to study or advocate for. Identity politics and the endless contest of perspectives is much more popular among students and scholars coming out of places like UC Berkeley. In my own department, students were encouraged to read Habermas’s early work in the context of the identity politics critique, but never exposed to the later work that reacted to these critiques constructively to build a theory that was specifically about pluralism, which is what identity politics need in order to unify as a legitimate state. There’s a sense in which the whole idea that one should continue an philosophical argument to the point of constructive agreement, despite the hard work and discipline that this demands, was abandoned in favor of an ideology of intellectual diversity that discouraged scrutiny and rigor across boundaries of identity, even in the narrow sense of professional or disciplinary identity.

Tapan Parikh succinctly made the point that Habermas’s philosophy may be too idealistic to ever work out:

“I still don’t buy it without taking history, race, class and gender into account. The ledger doesn’t start at zero I’m afraid, and some interests are fundamentally antagonistic.”

This objection really is the crux of it all, isn’t it? There is a contradiction between agreement, necessary for a legitimate pluralistic state, and antagonistic interests of different social identities, especially as they are historically and presently unequal. Can there ever be a satisfactory resolution? I don’t know. Perhaps the dialectical method will get us somewhere. (This is a blog after all; we can experiment here).

But first, a note on intellectual history, as part of the fantasy of this argument is that intellectual history matters for actual political outcomes. When discussing the origins of contemporary German political theory, we should acknowledge that post-War Germany has been profoundly interested in peace as it has experienced the worst of war. The roots of German theories of peace are in Immanual Kant’s work on “perpetual peace”, the hypothetical situation in which states are no longer at way. He wrote an essay about it in 1795, which by the way begins with this wonderful preface:

PERPETUAL PEACE

Whether this satirical inscription on a Dutch innkeeper’s sign upon which a burial ground was painted had for its object mankind in general, or the rulers of states in particular, who are insatiable of war, or merely the philosophers who dream this sweet dream, it is not for us to decide. But one condition the author of this essay wishes to lay down. The practical politician assumes the attitude of looking down with great self-satisfaction on the political theorist as a pedant whose empty ideas in no way threaten the security of the state, inasmuch as the state must proceed on empirical principles; so the theorist is allowed to play his game without interference from the worldly-wise statesman. Such being his attitude, the practical politician–and this is the condition I make–should at least act consistently in the case of a conflict and not suspect some danger to the state in the political theorist’s opinions which are ventured and publicly expressed without any ulterior purpose. By this clausula salvatoria the author desires formally and emphatically to deprecate herewith any malevolent interpretation which might be placed on his words.

When the old masters are dismissed as being irrelevant or dense, it denies them the credit for being very clever.

That said, I haven’t read this essay yet! But I have a somewhat informed hunch that more contemporary work that deals with the problems it raises directly make good headway on problem of political unity. For example, this article by Bennington (2012) “Kant’s Open Secret” is good and relevant to discussions of technical design and algorithmic governance. Cederman, who has been discussed here before, builds a computational simulation of peace inspired by Kant.

Here’s what I can sketch out, perhaps ignorantly. What’s at stake is whether antagonistic actors can resolve their differences and maintain peace. The proposed mechanism for this peace is some form of federated democracy. So to paint a picture: what I think Habermas is after is a theory of how governments can be legitimate in peace. What that requires, in his view, is some form of collective deliberation where actors put aside their differences and agree on some rules: the law.

What about when race and class interests are, as Parikh suggests, “fundamentally antagonistic”, and the unequal ledger of history gives cause for grievances?

Well, all too often, these are the conditions for war.

In the context of this discussion, which started with a concern about the legitimacy of states and especially the United States, it struck me that there’s quite a difference between how states legitimize themselves at peace versus how they legitimize themselves while at war.

War, in essence, allows some actors in the state to ignore the interests of other actors. There’s no need for discursive, democratic, cosmopolitan balancing of interests. What’s required is that an alliance of interests maintain the necessary power over rivals to win the war. War legitimizes autocracy and deals with dissent by getting rid of it rather than absorbing and internalizing it. Almost by definition, wars challenge the boundaries of states and the way underlying populations legitimize them.

So to answer Parikh, the alternative to peaceful rule of law is war. And there certainly have been serious race wars and class wars. As an example, last night I went to an art exhibit at the Brooklyn Museum entitled “The Legacy of Lynching: Confronting Racial Terror in America”. The phrase “racial terror” is notable because of how it positions racist lynching as a form of terrorism, which we have been taught to treat as the activity of rogue, non-state actors threatening national security. This is deliberate, as it frames black citizens as in need of national protection from white terrorists who are in a sense at war with them. Compare and contrast this with right-wing calls for “securing our borders” from allegedly dangerous immigrants, and you can see how both “left” and “right” wing political organizations in the United States today are legitimized in part by the rhetoric of war, as opposed to the rhetoric of peace.

To take a cynical view of the current political situation in the United States, which may be the most realistic view, the problem appears to be that we have a two party system in which the two parties are essentially at war, whether rhetorically or in terms of their actions in Congress. The rhetoric of the current president has made this uncomfortable reality explicit, but it is not a new state of affairs. Rather, one of the main talking points in the previous administration and the last election was the insistence by the Democratic leadership that the United States is a democracy that is at peace with itself, and so cooperation across party lines was a sensible position to take. The efforts by the present administration and Republican leadership to dismantle anything of the prior administration’s legacy make the state of war all too apparent.

I don’t mean “war” in the sense of open violence, of course. I mean it in the sense of defection and disregard for the interests of those outside of ones political alliance. The whole question of whether and how foreign influence in the election should be considered is dependent in part on whether one sees the contest between political parties in the United States as warfare or not. It is natural for different sides in a war to seek foreign allies, even and almost especially if they are engaged in civil war or regime change. The American Revolutionary was backed by the French. The Bulshevik Revolution in Russia was backed by Germany. That’s just how these things go.

As I write this, I become convinced that this is really what it comes in the United States today. There are “two Americas”. To the extent that there is stability, it’s not a state of peace, it’s a state of equilibrium or gridlock.