Thursday, November 02, 2017

a magisterial sigh

Ah, the great magisterial sighs of the 19th century bigwigs! One way to explain the cultural critique in Nietzsche is his exasperation with the high culture of mandarin resignation. It is the side of Nietzsche that can be summed up by the theory of the eternal return (a theory that leads inevitably to parody, or even to parody as the very principle of worldmaking) or by a phrase that never occurs in the papers of that son of a Lutheran pastor: fuck you!
Jules Renan was a great magisterial sigher. He had the highest reputation in the 19th century. Reviewing his “Reminiscences of Childhood and Youth”, Henry James wrote, Jamesianly: “It is not enough to say of him that he has the courage of his opinions: for that, after all, is a comparatively frequent virtue. He has the resignation; he has the indifference; he has, above all, the good humor.“
There is something to this. To be indifferent to your opinions is as comparatively rare as it is frequent to have the courage of them. One could even ask why one should form opinions at all if we are going to be indifferent to them.  Renan, being a classicist, might reply to that question by pointing to Parmenides poem about Being, a poem in which the great struggle between Night and Light is, as well, a non-struggle, in as much as they cannot mix at all, but only separate. This is not only the struggle between becoming and being, but the struggle between believing and knowing. The latter is a utopia, an aporia, given that the forms or ideas can never mix with that of which they are forms. Knowledge, then, requires a certain exhaustion. We are finally brought to the variable, which no content can fix. This can be viewed as an epistemological tragedy, or… a historical farce.
The back and forth of farce is what Renan opts for. Hence in the introduction to his Reminiscences, he basically signs the death warrant for the world as he has known it:

“The world is marching towards a kind of Americanism, which would all our refined ideas, but which, once the present crisis is over, could well be no worse than the old order for the only thing that counts, which is to say, the franchisement and progress of the human spirit. A society where personal distinction has little price, where talent and intelligence have no official recognition, where high function does not ennoble, where politics becomes the job of classless men and persons of the lowest order, where the rewards of life go, by preference, to the intrigue, vulgarity and charlatanism that cultivates the art of the advertisement, to the rascality of those who find ways to squeeze the Penal Code; such a society, I say, does not please us.”

But then, of course, comes the other hand, that hand that, as though driven by some neurological defect, comes up and slaps its owner’s face. For Renan reviews all the “old orders” he or his parents have lived in, and found them all to come up short, to be full of scurrility, vulgar powerbrokers, and heartbreaking obstacles to the enfranchised imagination. So don’t worry, old man. The worst is yet to come – but it is always yet to come. The worst is behind us – but it is also ahead of us. This is positivism inverted, and it has a certain odd comfort to it. But it is a high price to pay for indifference to one’s opinions.

James notices this too, and makes a reply to Renan that also has its place in some impossible dialogue between Parmenides and Protagoras (who, not by coincidence, name two of Plato’s dialogues): “He [Renan] makes the remark that in his opinion less importance will be attached to talent as the world goes on; what we shall care for will be simply truth. This declaration is singular in many ways, among others in this: that it appears to overlook the fact that one of the great uses of talent will aways be to discover truth and present it; and that, being an eminently personal thing, and therefore susceptible of great variety, it can hardly fail to be included in the estimate that the world will continue to make of persons.”


Monday, October 30, 2017

non-disclosure agreements: the trick the mafia missed

In Leopoldo Sciascia’s crime novels, there are always two solutions. One is the true solution, patiently assembled by the inspector or researcher (who either has too much integrity to be allowed to function after a certain point, or has too much naivete to realize that he is putting himself in mortal danger), and the other is the solution most convenient to the representatives of the State – the same State whose laws define the crime that is supposedly being punished.

Such was and is Italy, from the 60s to the 90s. The genius of American corruption is elsewhere. America is a country of laws, so corruption first operates by unmaking the law to suit the perpetrators. It allows such things as non-disclosure agreements, for instance. For a certain sum of money, the perpetrators can either not be tried at all or their trials can’t be accessed.
It would seem, at first glance, that such things are counter to any principle of the legal order. To allow a crime to be hidden by a non-disclosure agreement is logically equivalent to allowing a crime to be perpetrated outside of the law. If we protect a rapist from the disclosure of the rape, or we protect a pharmaceutical company from the consequences of malpractice so severe that thousands die of it every year and hundreds of thousands are addicted, we are doing nothing different from allowing people to be lynched for crimes they are merely accused of.  Interestingly, what ties the Weinstein accusations to the Sackler family exposes recently paraded in two magazines is that in both cases, the outlines of what happened are obscured by court order. The law itself is intent, here, on hiding the possibility of crime.
It is worth asking how a non-disclosure agreement, which might have a use in protecting Intellectual Property, became the go-to instrument for lawyers protecting monied criminals. That history leads us back to the eternal struggle between capital and labor. At the beginning of the twentieth century, progressive legislation made it necessary for employers to disclose to their laborers facts pertinent to the particular dangers to health faced by the laborer from the materials he or she dealt with. However, the courts saved capitalism by making that disclosure an agreement, such that the laborer couldn’t hold the employer liable. From this, it was a hop, skip, and a social cost to the establishment of Workers Insurance schemes mounted by the state (which, in this as through its entire history, was not the enemy but the collaborator of Capital). At the same time, it became apparent that the products of companies could be hazardous – accidentally or for a purpose – and a requirement to disclose those dangers was incorporated in the law as well. Upon this base of law was built – during the brief spring of democratization that swept the U.S. in the sixties and seventies – a whole movement for consumer rights. At that time, many ‘right to know” laws were passed. Where employees were formerly not told that, for instance, the asbestos they are mining will kill them horribly, or even where they were informed tardily, they could be sued. In fact, in any real history of the U.S., the suing of John Mandeville Asbestos should take a larger space than it is given, for that suit shocked the business establishment. The counter-revolution had many sources, but one of them was definitely the nightmarish idea that a company could make a fair profit while killing its employees with chronic diseases and then, then, the fuckers would take that profit back to pay for a lot of slacker hospital time. The very idea made officials in the Reagan whitehouse – and in neo-lib think tanks advising the Dems – feel so bad.
One of the landmarks in the counter-revolution against labor was an obscure court decision, Chrysler Corporation vs. Brown. The court held there that the “Trade Secrets Act” of 1905 trumped the FOIA laws that had been set up in the sixties. That a third party would have any access to government files concerning Chrysler’s discriminatory hiring practices from documents submitted by Chrysler was outrageous. An informed population is a population that is difficult to govern. And imagine the nightmare of everybody knowing Chrysler’s business?
The muffled roar of Chrysler vs. Brown was, of course, heard by those paid to hear such things: corporate lawyers. The charge was on.
How the non-disclosure agreement extended from trade secrets to secrets of life and death, of rape and pillage, is wrapped up with another strand of the story of the cold war. For it was the security state that innovated in using the NDA as a powerful tool to keep things out of court.
In 1984, for instance, the Reagan administration was forced to form a commission to investigate the murder of four nuns in El Salvador. The nuns were lefties, and their murder was planned and executed, it was suspected, by allies, to say the least, of the Americans. The study was completed, and turned into the State department, which promptly branded it top secret.
The families of the nuns protested. This protest was heard. The administration then took a compromise position. The family members could see the report, as long as they signed an NDA that pledged them to never disclose the information in the report under any circumstances as long as they shall live without the permission of the State Department.

Thus, at one neat stroke, a crime could be hidden beneath an agreement.

I say a crime. But what is a crime? The United States is a very nominalist culture. To attack racism, for instance, you attack racist labels. Once the labels are forbidden, voila, racism is solved. Similarly, rape or murder might be a crime. Or it might not! An NDA is a nice way of suspending that label forever. Like Schrodinger’s cat, it is concealed from the observer, and is therefore in a perpetual middle state, the state of Mu, to use the Zen term (no doubt incorrectly).

What the CIA and FBI get away with doing will soon be standard practice for the rich and famous – or simply the rich. Expanding the trade secret sphere was relatively easy in an age in which publicity had seamlessly merged into product production. Hence it becomes common that film companies have all workers sign a NDA to block release of information about, say, the behavior of the actors on the film. Creep creep creep, its mission creep for creeps, time. The NDA becomes an instrument of corruption that is all above board and tucked in. And so we get to our current epoch, where thousands die and the company that sold them their pills continues to not only profit, but ultimately block information about how they did it; where the Sackler name adorns multitudes of buildings, the result of donations that flowed from the money made by Oxycontin; where thousands of women are subject to sexual harassment up to and including rape, and the Weinsteins roam the landscape.
I wonder as I wander how long such things can go on. They have gone on almost my entire life. The man in the iron mask used to be an emblem of unaccountable power. Now, he’s your everyman. Let’s marvel that Rosie McGowan is so bound legally that she can be sued by Harvey Weinstein if she describes in any detail what he did to her in his hotel room in 1997, and the accuser of Bill O’Reilly is bound to anonymity forever as a result of her settlement. Marvel that Purdue Pharmaceuticals is at the moment claiming that the documents it was forced to release to Oregon when the state sued them for abusive oxycontin pill pushing are all a trade secret, and can’t be disclosed to anybody else. Marvel that with the far right justices who rule the court system, probably Purdue will win in the end. Marvel that the Mafia missed a big trick.


  “In brief, cultural history only represents a surface strike against the insight [of historicism], but not that of dialectics. For it lack...