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The author gratefully acknowledges the fruitful conversations with Julian Cottee which helped shape these thoughts.

What is the ethical?

Searching for this elusive point of presence in an unlikely place (an essay by a post-structuralist thinker on the September 11th attacks: Jacques Derrida) yields, perhaps unsurprisingly, a twofold answer defined, primarily, in negation. The ethical cannot be a system of logical rule following, for this both forbids, and is governed by, deferral; there can be no changing one’s mind; action has begun; no decision is involved; it is no longer one’s own responsibility. The ethical also cannot be the purely dutiful for, as Kant has observed, this duty is, at base, a compulsion, a coercion. Does this situate the ethical in the realm of the impossible, beyond even a “regulative idea”? (Derrida, 133-134) While I would, by no means, cast myself as a Derridean, in this instance the writer heralded as a practitioner of “obscurant terrorism” (see Mitchell) provides a useful backing against which to conceptualise such problems.

In this micro-essay (certainly it will be impossible to comprehensively cover the issues at stake here, so instead I will adopt a stance) I would like to ask, from within a context saturated with “ethical consumerism”: to what degree of rule following and coercion are we regularly subjected? How does this impact upon the sphere of the legal? What can be done, in transition to the ethical, to halt the constant flux of deferral so that responsibility must rest in the sphere of capital?

The concrete; a case-study

Many Electricity and Gas companies offer Green Tariffs. Although all power in the UK is sourced directly from the National Grid, such tariffs purport to ensure that the share of electricity that you use is re-contributed using sustainable sources: wind, water, waves, sunshine. You can even do the same for flights – no carbon footprint as a result of the jetsetting. It all sounds like a fantastic, ethically-sound holiday. I almost signed up.

Why almost?

Does supply-and-demand offer a valid model for the transfer of ethical responsibility to the consumer? Is it really my power stations or my planes that are doing the damage to the environment? I own neither of these items and, were they not offered to me, I would not create demand for them. The overcrowding of the UK prison system reported since 2007 (Travis) seemingly indicates that there is a demand for the already criminalised activities of theft, assault, rape and murder, yet this does not excuse the perpetrators from culpability. Demand is not, while the demand is minority, a defence from legal or ethical responsibility. How, therefore, can it be justified to supply a product that is known to cause environmental, or human, damage? How, therefore, can it be justified to demand such an item?

It seems that the, I would argue hugely inadequate, “answers” (excuses) to such (if-only-they-were-rhetorical) “questions” are to be found in Derrida’s definitions of the unethical. Suppliers produce products that are damaging – and, in themselves, unethical – because, they argue, they are coerced and compelled by a duty to provide for the customer, a duty to provide for themselves and their family and, most insidiously – for it is inscribed in law – a “fiduciary duty” to the company, if not always to shareholders (see Cotter, 129). On the consumer side, it is a matter of rule-following. Is the product legal? Check. Does the product have a clean press record? Check. Is the product cheap? Check.

However, while legislation for climate change is pending consideration, it seems late in coming and the mechanisms of the neo-liberal capitalist system abstract responsibility; traditional models of criminality are inadequate as the suppliers defer to the consumers and the consumers back to the suppliers. In a system of reciprocal coercion, change is not possible; there is too much hostility.

In light of this hostility, what is required is the opposing force: hospitality.

Hospitality and Tolerance

Hospitality comes, according to Derrida, in two flavours: conditional and unconditional. At the polar extreme of conditional hospitality – offered “only on the condition that the other follow our rules, our way of life, even our language, our culture, our political system” – is tolerance; a form of conditional hospitality used to “limit [one’s] welcome” and “retain power”. (Derrida, 127-128) As capital is the place where change can be effected, but capital always seeks to retain power, it is here that we should locate hope.

The utopian solution, obviously, is one of pure hospitality, one which “can have no legal or political status” as “[n]o state can write it into its laws”. (Derrida, 129) Those with capital would refuse to operate unethically. The existing infrastructure would be dismantled immediately and responsibility would be transferred, willingly, to those with the power to create change.

The realistic solution is in the law as a measure for a time of transition, a state of emergency, of coming-into-being – a tolerance of the law which, were a situation of pure hospitality feasible, would not have to be tolerated. Legislation must be passed that proscribes not only the demand for the demonstrably unethical, but also the supply. Note well the twofold ban. Single-sided criminalisation has demonstrably not worked to curb prostitution; it has merely performatively re-constituted the very rejection by society that forces many into the sex industry. The same applies to business (for what is prostitution if not a system only possible inside a model of capitalism that simultaneously feels distaste for, yet operates upon, exploitation?) Criminalising only the suppliers will lead to an alienation of those with capital, who will threaten to brain-drain into less regulative economies, which neither serves the locality, nor the global as their activities will continue.

Criminalising only the demand side will do nothing to placate a form of proletarian Marxist resentment. If an action is to be condemned, it must be condemned unilaterally. Admittedly, outlawing the supply and demand of drugs has done little to curb either side in that chain; perhaps this is because, in a liberal democracy, kratos does not have to be executed through the polls, but rather on the streets; perhaps an activity is being criminalised needlessly (but please bear in mind, the next time you snort a line, that you will need to use a great deal fewer plastic bags to offset, in your ethical account book, the horrific damage inflicted upon many human lives by the drug trade. Fair trade cocaine?)

This situation in no way indicates that there is no hierarchy of responsibility. Quite simply, those with the resources and the means (commonly referred to as “power”) must be held more accountable. This hierarchy is obviously complicated by corruption, in which resources and means are no longer viable as discrete categories (see Chevron’s political policies for instance. Also note that, in the UK, Peter Mandelson’s role as business secretary ensures this integration although, to be certain, this will only increase under the, hugely likely, arrival of the next Conservative government), but the chain of responsibility should be comprised of government (means), then capital and supply (resources) and then consumers.

Science, Freedom and Regulation

The concept of a legal solution has, of course, been greatly undermined recently by the government’s appropriation of science only where it suits a predetermined agenda; once more in relation to drugs. Yet, a legal framework for the prohibition of the unethical cannot be implemented without empirical, quantified determination of both the damage an activity causes and the limits that must be imposed. A simplified concretion. Empirical determination: Xmg per person per year of CO2 emissions will, with all probability in light of current evidence, lead to irreversible climate damage. The legal: energy firms must apply, for every customer they have, for an allowance to produce an amount of CO2 less than X. It is, therefore, imperative that impartial scientific advisers consult the contemporary material from experts and, erring on the side of the over-restrictive , relay these findings to a government that will listen.

Already there are accusatory cries of “bureaucrat!”, “regulator!”, “nanny-state!” But you, who cry, have already accepted an incursion into your freedom. You may not murder; you may not rape; you may not steal. A government exists to prevent individuals from harming one another. Capitalism is a system through which it is possible to harm others, yet, the reification of this, fundamentally abstract, concept, leads to a responsibility that is merely deferred.

The harm is, supposedly, impossible to stop because the buck rests on capitalism; concrete in its ostensive definition as the object of blame, abstract, smoke-like and spectral in its ability to receive punishment. Capitalism seemingly acts as the non-punishable excuse that bridges the gap between culpability and criminality. Increased regulation in the sphere, not only of the corporate, but also of the individual is necessary so that, when we look back, the worst history will be able to record is that we were over-restrictive of freedom, based on our principles of caution and, as of yet, undiscovered scientific principles. Let it not record that, through a reckless determination that all and sundry be free, we murdered, raped and stole from the planet, at the expense of the environment and other human beings, without a single care but that our own lives were satisfied.

In terms of freedom there is here, of course, a cyclical aporia best exemplified in the philosophies of anarchism; while rights must be restricted to protect others and the self, this proliferation can seem at odds with fundamentally liberal – laissez-faire – principles. In the case of anarchism this plays out over the spectrum of political alignment. While philosophers of egoistic anarchism, for instance Max Stirner, exemplify freedom for the self – which corresponds to a contemporary stance of economic neo-liberalism – others, such as William Godwin, tend more towards the socialist end of the spectrum (indeed, there are socialist anarchists) of which a contemporary interpretation would see regulation as a necessary component. Legislation is termed in the generalised and relative, yet the limits of legislation must somehow be made absolute within the contemporary, even against the backdrop of Utopian (always remember: no-place) aspirations.

As a final note, then, the law cannot be, in Derrida’s terms, “the last word in ethics, politics, or anything else,” (Derrida, 115) yet, in the self-modifying paradigm of a utopia that can never come, or be recognised (but for which we will strive – the transcendental bridge of the Kantian play in my title), increased regulation of those individual freedoms which – where supported in good faith by multiple informed and independent panels (and, again, always subject to future revision) – cause damage to others, is a viable superscription, or meta-law, to govern the behaviour of governments; a teleology which ensures that its own target is a horizon, rather than an abyss.

How this model of supply and demand can work internationally – can a legislative economy be created where other nations will “demand” a similar framework? – and what meta-law would govern this disparate collection of meta-laws, is a question best deferred, if I may use this term, until another time.

Sources

Anne-Marie Mooney Cotter (ed.), Banking & Corporate Financial Services (London: Cavendish, 2003)

Jacques Derrida, “Autoimmunity: Real and Symbolic Suicides: A Dialogue with Jacques Derrida,” in Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida, trans Pascale-Anne Brault and Michael Naas (Chicago: University of Chicago Press, 2004)

W. J. T. Mitchell, “Dead Again,” Critical Inquiry, Vol. 33, No. 2 (Winter 2007)

Max Stirner, The Ego and His Own, trans. by S.T. Byington (London: Jonathan Cape, 1921)

Alan Travis, “1,500 to be released early as prison crisis bites”, The Guardian, 20 June 2007, <http://www.guardian.co.uk/uk/2007/jun/20/politics.ukcrime&gt; [accessed 8 November 2009]

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6 thoughts on “On Regulative Ideas

  1. Interesting essay, a few thoughts in response, some of which may be due to my very sketchy understanding of Derrida’s work.

    In the relationship between the electricity consumer and the electricity producer, what is the source of the coercion? Surely there is an important difference between coercion, compulsion and “consumer choice”, even in the domain of what we consider to be essential utilities? There is a difference between the “coercion” felt by the electricity company, which originates in legal obligations that serve the logic of capital, and the “coercion” felt by the consumer, which originates in perceived basic needs and is realised in a commercial relationship that is decidely uneven in terms of power, especially in this relatively monopolised sector.

    On the question of utilities companies and tolerance/hospitality, they can be treated quite differently to drugs and prostitution for a very obvious practical reason: it’s a lot easier to spot an illegal coal power station!

    You could also look to liberals like Sandel for an ethical underpinning to laws that isn’t based on duties or rules. Or perhaps take Scanlon’s contractualism as a point of departure and identify the compulsions, coercions and choices that we are subjected to and indirectly subject others to which, if described as general regulations, we would never agree to.

    Two thoughts on the restriction of freedom. First, a wider understanding of freedom offered by liberals (e.g. Mill, Locke, Berlin) and others (e.g. Fromm) can easily argue for those restrictions as a means to enlarge our freedom. Second, the progressive liberal response to capitalism is better international regulation. Coercion of workers is due to poor labour laws in those countries; Bhopal-style harm is due to poor regulation of industry; and so on.

    Put the two together and a liberal could say that the rules don’t yet protect and enlarge our essential freedoms, but that this would be possible if capital were properly constrained and directed by the law as intended, underpinned by an account of the ethical. This would never hold water with the likes of Derrida, of course!

  2. [ Tom meet Martin, a friend from my undergraduate degree, Martin meet Tom, a colleague at the GLA. Since most people who comment are known to me, I feel introductions are conmpulsory =) ]

  3. Nice to meet you Tom!

    Thanks for the response; all of the sources you cite have well-grounded lineages leading to their conclusions and it would be nice to follow up on where the liberal tradition leads when, it seems, the policy is implemented, but the predicted results are not achieved; it seems that the liberals are no longer willing to legislate against business, even the patently unethical. I chose Derrida primarily for this reason – the democracy “to-come” never arrives – it remains similar to a Kantian regulative idea of bringing transcendental critique to a comprehensible (categorical) level. I’m not sure that Derrida would disagree with your final assessment (if such speculative hearsay may be permitted for a moment); I think he would just be sceptical as to its viability.

    However, to address your first point about the source of coercion: I feel that this is twofold.

    I believe a transition to the legal should be the goal for coercion but, at present, this is non-existent/ineffectual on account of a non-existent/ineffectual checks and balances system that allows business to infiltrate policy.

    At present, however, the coercion lies in the nebulus realm of ethical consumerism. As I outlined, perhaps too swiftly and too abstractly, it is viable for both sides to defer their ethical responsibility into the cloud of supply-and-demand logic. Each side attempts to coerce the other with no tangible result.

    While I take your point on drugs and prostitution differing in many respects, I still feel that the logic of resentment that I intended to illustrate here holds. Single-sided legislation will inevitably result in some form of grudge and this has, thus far (as we have seen far too few heavy handed single-sided measures against commerce) been best exemplified in drugs and prostitution.

    It’s a veritable can of worms and, as I was forced to admit, the space of a blog post is a highly inadequate medium for discussing such topics – although, given such a thought out response, it has obviously opened up some debate amid a tired field – so thank you!

    Martin

  4. I think it’s very unfair to suggest that current implemented policies adequately reflect the work of any of the thinkers I mentioned, and to suggest that “liberals” (the lumpen-lib?) are “no longer willing to legislate against business”. In fact, just inaccurate.

    I’m still not clear what you mean by coercion. Your description of deferral in a quasi-free market is spot on, but how is the deferral of responsibility coercion – forcing somebody to behave in a particular manner involuntarily? Poorly paid workers are coerced, quite often by force and as well as basic economic needs. Businesses are required, but not exactly coerced, into complying with the law and; respecting varied “social responsibility” considerations whilst, if they’re incorporated, serving their shareholders. Consumers are required to meet their basic needs through purchasing goods, and are encouraged, brainwashed, pressured etc. into further consumerism.

    Where’s the coercion?

  5. I agree that, in retrospect, claiming an “implementation” was a poor choice of words and is unjustified. Instead, I meant to imply that, as I understand it, these works have had an enormous influence upon what we now, implicitly, regard as political democracy and that, therefore, aspects of the liberal tradition are politically ingrained.

    For example, Locke’s definition of political power, the penalty of death excepted, is pretty much universally accepted as the model of government:

    “Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good” (Second Treatise, Chapter One)

    While Lockean consent to the social contract is, clearly, subject to heavy debate, property inheritance counts as tacit consent and this principle is very much at the heart of a British democracy with a historical backdrop of affording the vote, and thereby societal inclusion, only to those with property. (Two Treatises 2.120-122)

    Yes, thankfully, we don’t go in for natural law any more, but the concept of natural rights is very much part of the US constitution. After all, their truths are self-evident.

    Mill, on the other hand (and along with de Tocqueville in the States), has had a huge influence upon the concept of governmental locality, but also on the concept of “self protection” which warrant governmental interference (On Liberty, 223). While we now appreciate the heavy costs that proportional representation can inflict in bringing extreme right wing governments into power, this has also been profoundly important in the development of the current system.

    The rhetoric of Berlin’s positive and negative liberties have resounded through the lips of every US President for the last who-knows-how-many years alternately as justifications for war (freedom from oppression), laissez-faire economics (freedom to) and even draconian clampdowns and witch-hunts (freedom from communism).

    Each has been tainted, twisted, re-contextualised and, I’ll concede, not “implemented”, but I still think there is a fundamental problem when a political system such as the current, which clearly has several strains of what we term liberal thought at its heart, is embedded in capitalism. With short-term electoral periods, financial support can be directly linked to public support (observe what happens when you upset Rupert Murdoch) and business is therefore priveleged over society providing a strong incentive to stay “on-side” with the big players. How this speculation will play out will be interesting to see at Copenhagen, but if the UK governments attitude remains anything like the Digital Economy Bill, I’m not holding my breath.

    I think the coercion element which I’m getting at is best couched in the guise of impending legislation through moral coercion of the government and, thereby, an attempt to legislatively coerce the other side. Using a backdrop of scientific research which, with a few exceptions, presents a clear picture of environmental damage, there is a pressure to legislate. As this legislation does not exist at present, each side (consumer and supplier) are attempting to force (coerce) the government to lay future legal responsibility on the other (“supermarkets shouldn’t provide plastic bags”/”consumers should use fewer plastic bags”). When the appropriate channels of influence reach government (public opinion or Mandelson’s chums) there will be an attempt to legislate. In the meantime, by deferring actual responsibility, each side is attempting to force (coerce) recognition of their own moral superiority across the abstract entity of capitalism which merely serves as a way to blame the system instead of, again, accepting responsibility. The legal framework allows this moral superiority to be transferred into a legal weapon; laws which have the true capacity to physically coerce.

  6. You’re right about Locke’s views on property being the basis for most mainstream American political philosophy, and his work certainly contributed to the marginalisation of more radical whigs in England. But it’s a bit sneaky to link that with England’s history of property and the right to vote. Likewise blaming Berlin for the way in which American presidents have employed his ideas is pure fallacy by association. I’m sure you roll your eyes in exasperation when somebody blames Marx for Mao!

    My point is that you can run a pretty convincing critique of all the problems you discuss using Mill, Sandel, Locke, etc. just as you could mount a devastating critique of the USSR and the PRC using Marx, Negri, Kropotkin, etc.

    Youe fuller explanation of coercion is interesting, and raises a question: is coercion possible when the agent lacks the power to carry it through? The powers that individual citizens and supermarkets have over the Government on an issue like plastic bags are complex, but not straightforwardly coercive, I would suggest. There has to be a difference between influence, pressure, leverage and coercion.

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