Ezekiel Vergara Punishment: Human Nature, Order, and Power Ezekiel Vergara Legal punishment has become a pervasive phenomenon in society, affecting millions of individuals worldwide and encompassing police practices, prison systems, and medical professionals. However, the practice of punishment often overshadows its theoretical goals. This paper attempts to highlight the theoretical aims of punishment through a genealogy of punishment as it relates to human nature. The theory of punishment demonstrates the primacy of order as tied to human nature. In addition to order, punishment is shown to have secondary aims, such as moral desert, rehabilitation, and revenge. These primary and secondary goals of punishment are then compared to the modern practice of legal punishment. Unsurprisingly, punishment in theory differs greatly from punishment in praxis. Instead of fulfilling its theoretical aims, punishment functions as a locus of power that strips agency from the offenders. In an attempt to ameliorate this theoretical-practical difference, various solutions are provided to make practical punishment more congruent with the adopted theory. In the analysis and critique of punishment, authors from various fields are cited, ranging from seminal works by Michel Foucault to modern works by William Connolly and Didier Fassin. While the first instance of punishment remains unknown, punishment has permeated all aspects of life — in prisons, schools, and at homes. However, this paper will be limited only to “legal punishment,” or the activities of punishment that are conducted by states, courts, and police (1). To examine punishment, this paper will theoretically examine the institution and nature of punishment. The first section of the paper will seek to answer the question “what is punishment?” A brief genealogy of punishment and human nature will be presented. Proceeding from this analysis, the second portion of this pa- per will juxtapose the theoretical outline of punishment—as derived from human nature—with the actuality of modern punishment. Notably, it will be argued that the presence of asymmetric power relations distinguishes theoretical punishment from actual punishment. In response to the discrepancy between theoretical and practical punishment, a possible improvement to punishment will be proposed: al- lowing offenders to propose their own punishment. Finally, the paper will consider challenges to this proposal. In order to present a thorough and convincing analysis, each section of this paper will refer to a variety of authors, mainly political theorists and jurisprudential scholars, while also referencing some empirical data. Likewise, this paper will operate within the paradigm of the current debate on punishment and focus on punishment in the United States (2). I. Human Nature and Punishment Punishment is related to human nature; it seems impossible to divorce the two. Through a genealogy of punishment, it will be shown that these two concepts are heavily intertwined, with the human desire for order serving as the impetus for punishment. “Punishment,” then, refers to “an attempt to reestablish order through sanction on the offender, in accordance with human nature.” A few clarifying statements should be made before this relation is demonstrated via genealogy and analysis. First, the term “human nature” is an amorphous concept. Among theorists, there is debate on whether a unique “human nature” exists (3). Moreover, even if a human nature does exist, there is no consensus on the nature of this concept (4). Hence, this paper will present a thorough analysis of human nature that draws upon various authors. However, it is recognized that other conceptions of human nature may lead to the same conception of punishment. Second, the fact that punishment is related to human nature does not mean that human nature involves punishing. This paper does not preclude the hypothesis that human nature itself desires punishment, yet the link between punishment and human nature supported by this paper is more derivative, in that punishment arises from the human want of order (5). Presently, this paper will provide a genealogy of punishment that begins with human inequality (6). This inequality, which is natural to man, leads to conflict over similar wants. Namely, some individuals are better suited to achieve their wants, while others are less capable. When two or more individuals want a good that cannot be divided, the most capable is able to acquire the good. Oftentimes, this zero-sum game leads to conflict as the weaker party seeks retribution (7). In the face of this conflict, man desires order, which is the primary impetus for punishment. Because of this conflict, man seeks to establish a type of order, an order that can allow individuals to pursue their ends without the threat of violence (8). Ultimately, this order is established by a superior individual, family, tribe, or group that exerts control and establishes rules in a certain region. Originally, these rules are simply based on custom—or the norms of fair expectations in common-life. Due to their historical underpinnings, these customs are obeyed by the people (9). Over time, though, customs become binding in a certain area or jurisdiction (10). Customs, founded on fair expectations, seek to apply an objective, ordered standard of conduct to human behavior. However, because customs are not universally followed, a mechanism is needed to maintain order and ensure adherence to these expectations. Primarily, to increase the level of norm adherence, sanctions serve to increase the costs of deviance. Eventually, with the creation of the state and morality, punishment began to be exercised by centralized legitimate authorities that monopolize violence (11). Important to the monopolization of violence is the codification of norms or general maxims, allowing the state to determine when punishments, such as monetary and physical punishments, should be applied. For instance, in the early United States, many crimes were accompanied by a fine and those convicted suffered harms from forced labor to capital punishment. Thus, a legal system came into existence. As punishment evolves over time with the expansion of the state, the economy also plays an important role related to order-based punishment. Namely, monetary payment can be used as a sanction on offenders, as a way to reestablish order (12). The creditor-debtor relationship serves as the basis for punishment in the Nietzschean account (13). The Nietzschean account highlights the relationality and inequalities of punishment. Namely, the asymmetry of Nietzsche’s power relations requires two or more parties, illustrating that power is something relational among individuals (14). As such, the penal relationship presents a distinct power dynamic, derived from the creditor-debtor relationship. Plainly, the creditor exercises an asymmetrical amount of power as he has something that the debtor needs or wants. On the other hand, the debtor has little power to resist, especially if he is in need of the creditor’s good. An asymmetry, then, exists between the creditor and debtor. Such inequality is mirrored in the punisher-punished relationship where the former exercises power over the latter, given that a good must be compensated. Given the desire for order—seen through the state and the economy—three points on human nature and punishment should be addressed here. First, the emergence of the state may simply be a “pleasure, delighted in the promised blood,” a mechanism that legitimizes infliction of suffering (15). Thus, instead of producing order, the state may simply serve as a means of exacting revenge on other individuals through a legitimized relationship. For example, police violence is legitimized and allowed to persist by the law (16). Second, the desire for punishment appears as a type of desire satisfaction, which signals that humans desire order. Simply, there is pleasure in order and reestablishing order through suffering. Rather than repaying money in the creditor-debtor relationship, the loan is replaced by suffering. Third, there seems to be a degree of rationality in punishment. For example, adults are sanctioned more severely than children for criminal offenses. Thus, it seems that punishment operates on a scale of rationality, as it is supposed that children have not completely developed such faculties, or what is generally accepted amongst individuals, whereas adults do (17). In short, then, punishment is derived from the desire for order, due to inequality and competing wants. Punishment reestablishes order when a standard—originally custom, presently law—is broken. Through a genealogy of punishment, certain aspects of human nature become readily disclosed. As such, punishment appears multifaceted, but likewise contained within a certain paradigm, that of history and custom. Thence, “punishment” appears to be “an attempt to reestablish order through a sanction on an offender, in accordance with human nature.” II. How to Punish This section of the paper will discuss a theory of how punishment should be practiced, as derived from human nature. Human nature appears to want order through punishment or sanction, but punishment appears to have secondary aims. Nietzsche identifies a list of secondary aims, besides the primary aim of order. For example, punishment also seeks revenge, deterrence, and reformation (18). This pa- per will now explicate the primary and secondary aims of punishment and analyze their current practice. In this way, it will be illustrated how punishment based on human nature would be conducted and how current practices deviate from these theoretical ideals. Order—the primary goal of punishment—is crucial to the practice of punishment. The basis of order is fair expectations, as has already been discussed. The notion of order, when tied to fair expectations, illustrates two aspects about how to punish. First, punishment requires a relationship of two or more individuals, most clearly seen with Nietzsche’s creditor-debtor example (19). A relationship between two individuals allows for a good to be extracted and a sanction to be applied, which releases the offender from his duty or debt. Thus, punishment must establish a relationship between individuals, thereby allowing order and therefore human nature to exist among them. Overall, this phenomenon is both practiced and disregarded in modern punishment. The modern offender engages in various relationships—with the warden, with the judge, with the prison-worker, with the doctor, with the criminologist— that allow for a good to be extracted and a duty absolved (20). However, this is not always the case. Solitary confinement is readily practiced in the modern penal system, undermining punishment’s goal of reestablishing order between individuals. Namely, by isolating an offender, it is impossible for the offender to form and maintain a given relationship, thereby disregarding a fundamental necessity of order (21). Moreover, even if it is the case that solitary confinement is not permanent, the relationships in question are disrupted (22). This not only limits the goods that can be extracted from the offender, but also creates an unequal power dynamic that further forestalls the absolution of the offender’s duty. That is, by confining the offender, he is rendered more unable to adequately engage in the relationships required by order-based punishment. Moreover, this power asymmetry strips the offender of his agency, which is of value, and contributes to disorder. Ultimately, to improve punishment, such an unequal power dynamic must be remedied. Second, in regard to order, is the notion of fair expectation. Fair expectations highlight the proportionality of a claim, as illustrated in the creditor-debtor relationship. The debtor and the creditor have an agreement on how much money should be returned to the creditor. While there exists an asymmetrical power dynamic among the creditor and the debtor, the agreement itself is fair (23). Thus, punishment requires a level of proportionality, due to the fairness of the original agreement. The proportionality of a sanction establishes a reasonable duty that is imposed on the offender, as a means to reestablish order. However, fairness as it relates to order is rarely practiced. Punishment in the United States is far from proportional, affecting minority and low-income individuals at a much higher level. These disparate impacts violate the original agreement of fairness and call into question the validity of the original agreement. Similarly, the modern penal system often places a burden on individuals, aside from the actual punishment. The offender often faces the prospect of losing his job, his family, and his friends (24). Hence, disproportionality is endemic to modern punishment. Aside from order, punishment also aims to exact revenge, deterrence, and reformation. In theory, these secondary aims support the primary goal of order. However, when improperly executed, these secondary goals actually subvert the primary end of order. Through an analysis of all three secondary aims, it will become clear that there are grand discrepancies between the theory and practice regarding punishment. The idea of revenge being an aim of punishment is grounded in Nietzsche’s work, namely the “slave morality” and his creditor-debtor relationship (25). Unable to alter the past, a wronged individual seeks to will the present and the future. To do so, punishment deprives the offender of future possibilities. Simply then, the offender must repay for his actions in sufferings that occur in and possibly over time (26). Revenge, then, desires that the offender suffers, requiring a unique relation- ship between a victim and an offender. However, in practice, revenge deviates from its theoretical framework. First, it is forbidden by modern law; second, it is expressive (27). As for the former, revenge is viewed negatively, seen by many as a type of desire to be suppressed. Only the law can punish, not private individuals. Nevertheless, the law appears to be a façade for this vengeful desire, concealing this vengefulness in its legitimacy (28). Although not always physical retribution, the law legitimizes the unsupervised and unwarranted violence of the few, seen in modern police practices (29). Moreover, punishment as revenge is expressive. Mainly a part of the retributivist framework, revenge is an expressive punishment that allows for the symbolic expression of disapprobation (30). Punishment creates a new social stratum of the delinquent (31). This social stratum unites society by providing a scapegoat that can be examined, questioned, and blamed. Thus, revenge is cathartic, creating a unified relationship between members of society against the delinquent population, as seen in Connolly’s discussion (32). Therefore, practical punishment should inflict warranted suffering on an offender and create an offender-victim relationship. However, in practice, revenge inflicts unwarranted violence that scapegoats the offender to unite large groups, perverting the aforementioned relationship. For instance, unwarranted violence against Black Americans, under the guise of punishment, has long served to unite whites around ethno-national identity. Yet, such unity under the guise of punishment is actually counterintuitive, given that through these means, the primary goal of order is subverted. Indeed, this prevents the creation of a legitimate, properly-ordered system. Deterrence is another aim of punishment, secondary to that of order. The idea of deterring crime suggests that individuals wish to live in an orderly society and have the ability to project into the future. Put simply, individuals can posit future relationships or possibilities where crime affects them. Thus, punishment deters other possible offenders from committing similar crimes in the future. However, deterrence supposes two connected ideas. The first is that individuals act rationally; secondly, it supposes that punishment is the appropriate means to deter crime. Deterrence, in theory, supposes the rationality of possible offenders and their ability to make cost-benefit analyses. The thought goes that by increasing the punishment for a given offense, individuals will be less willing to commit the crime as the benefit of committing an offense is overshadowed by the punishment for that offense. Notwithstanding this consideration, deterrence is very different on a practical level. Didier Fassin notes that the punishment used to deter crime is often aimed at humiliation and shaming, aimed at emotion, instead of rationality and cost-benefit analyses (33). Therefore, the theory behind deterrence, which is based on the conception of rationality among individuals, is overshadowed by irrational practice that subverts the primary goal of order. Deterrence, in practice, supposes not the rationality and dignity of humans, but rather exploits the social relations of individuals. Through such exploitation, the creation of a proper order is forestalled. This may partly answer why punishment aimed at deterrence fails, failing to support the primary goal of order (34). Finally, punishment has the secondary aim of rehabilitation. The idea of re- habilitation is important to maintaining the primary goal of order through punishment. In theory, rehabilitation has two key aspects: temporality and relational existence. Temporality is crucial to human nature and is tied to the goal of rehabilitating an offender. The idea of rehabilitation supposes that an offender remains the same responsible agent over time and likewise that the offender can change and adopt the laws and norms of a society (35). By attempting to reform an offender, the offender is forced to face the past and reflect upon the offense that was committed. During such a reflection, part of human nature is unconcealed, in the sense that the individual can gain understanding about himself (36). With this reflection, the offender is prompted to project into the future, where he will not commit the offense, drawing off the present insight, which is provided by the reflection on the past. As a result, the offender recognizes his own temporality, his possibility aside from crime and the temporality of the penal system. Relationality is also tied to rehabilitation. The notion of rehabilitation requires that an individual is aided by another individual. Usually, this takes the form of an offender and an authority figure, such as a therapist, a teacher, or a doctor. Although the offender-authority relationship is originally based on an asymmetry of power, the rehabilitation process diminishes the asymmetrical power dynamic as the offender reforms. Theoretically, over time, punishment serves to help the offender regain his standing in society, having “paid his debt to society.” Due to this symmetrical relationship of rehabilitation, the offender can understand his human nature and his past, knowing that the future will be based on relationships with other individuals in a given society. In short, rehabilitation awakens an of- fender to his human nature and diminishes the asymmetry between offender and non-offender. However, modern punishment falls short of rehabilitating offenders. Instead of engaging offenders with their temporal and relational being, punishment urges recidivism (37). Those who are punished by the modern system are disempowered and hardened in their ways. Rather than operating on the notion of individual responsibility, offenders are maligned; offenders are made out to be “[monsters]” beyond rehabilitation (38). Likewise, instead of turning offenders to the future and their possibility, the penal system focuses on the past and the asymmetrical power relations created by the past. This is best seen in Fassin’s ethnographic work, as prisoners are punished simply due to their past (39). For example, without the ability to secure adequate jobs or housing, many offenders turn back to crime, leading to high lev- els of recidivism. By limiting the opportunities available to former offenders, and contributing to recidivism, order-based punishment is undermined. Rather than a properly ordered system, offenders are thrust towards further crime and disorder. Offenders are neither rehabilitated nor empowered; offenders are trapped in the past, which forestalls their ability to recognize and to contribute to order. Punishment, namely how to punish, seems complex but grounded in human nature. Focusing on order, the ideas of relationality and fairness are clearly espoused. In regard to the other aims of punishment, the unique ideas of temporality, suffering, and rationality are clearly presented. However, the goals of penal theory are far from the actuality of penal praxis. Instead, the modern penal system perpetuates asymmetric relationships that alienate offenders and highlights the desire to faire le mal pour le plaisir de le faire (40). In such practice, human nature is blatantly disregarded, necessitating reform in punishment. III. Improving Punishment Punishment, as has been discussed, is based on a relationship and can thereby be described as just or unjust. As a concept, justice entails what should be given or done to others. Here, justice has a multiplicity of characteristics, yet one characteristic seems crucial to justice and is tied to human nature: relationality. Notably, justice defines the obligations and rights between individuals (41). Since relationality is an aspect of justice—which is paramount to reducing the discrepancy between theory and practice—reformation regarding relationships appears crucial to im- proving punishment. Practical punishment, as based on a power asymmetry, appears unjust. This power asymmetry is unjust because it strips the offender of his agency, which is of value. Therefore, the task of justice, regarding practical punishment, is reducing the power asymmetry between the offender and others. By reducing this asymmetry, offenders will better understand their nature, creating a proper order that is respective of the offender’s agency. Moreover, a more symmetric power dynamic would intuitively reduce the problems created by practical implementations of revenge, deterrence, and rehabilitation. That is, by having a more symmetric power relationship, not only will offenders be more capable to oppose these practical injustices, but punishers will be less likely to commit such injustices. To be more just, the penal systems must reduce the asymmetry of power relations by highlighting the agency of the offender. Instead of passively going through the penal system, the offender must exercise his unique human agency. The root of this aforementioned asymmetry arose from the penal process. Both Connolly and Fassin underscore the asymmetry of the modern penal system in their work. In regard to the former, the rhetoric surrounding the offender dehumanizes him, making the offender equivalent to an animal, one that needs to be tamed (42). In regard to the latter, the individuals are at the mercy of the penal system, unable to exercise their human capacities (43). This is further seen in the strict penal regiments of prisons and the rigid punishments of statutes. To reduce this asymmetry, I argue that offenders should be allowed to propose their punishment for the crimes in cases where a judge or jury has found the offender guilty. To illustrate this proposal, I draw from Plato’s and Xenophon’s renditions of the ancient Athenian penal system during the trial of Socrates (44). Unlike the modern penal system, where the offender plays a passive role, in the trial of Socrates, Socrates is prompted to give his own defense and cross-examine witnesses. Moreover, when Socrates’ is found guilty, he is required to propose a punishment that would serve as recompense for the offense in question. The Athenian jury, in Socrates’ case, then votes to choose between the offender’s proposed punishment and that proposed by the prosecution. By doing so, Socrates is able to exercise his agency, despite the fact that he is sentenced to drink the hemlock. In the modern penal system, the offender is able to defend himself if he wishes, but often defers to an attorney. Most times, the offender defers because he does not have a strong, functional knowledge on the intricacies of the law. Hence, a lawyer—an expert on the law—is brought in to compensate for the offender’s lack of legal knowledge. This process strips the offender of his agency to directly affect the legal proceedings and thereby creates an asymmetric power relationship between the offender and others. I propose that offenders should be allowed to propose their punishment for crimes in cases where a judge or jury has found the offender guilty. To ensure that all offenders can propose their punishments, all citizens should be required to take some course on the law, so that offenders can have more agency during the trial’s proceedings and in sentencing. In the wise words of Plato, “if law is the master [...] then the situation is full of promise and men enjoy all the blessings that the gods shower on a state” (45). By allowing the individual to present a possible punishment, the offender is forced to assume responsibility for his actions. Here, the offender exercises his agency and presents himself as a responsible agent before the court. Hence, the offender will create a more symmetric power relationship with others, including those of authority in the penal system. The result of this symmetric relationship will be a more just penal system, with individuals capable of exercising their unique human capacities. A few brief words should be said on this suggestion. First, the prosecution would also propose a penalty, like in the Athenian system. Penalty proposals would allow for the judge or jury to decide the punishment of a case, while also maintaining the symmetry of the offender-authority relationship (46). Similarly, this method does not sacrifice any of the goals of punishment as it allows order and punishment’s secondary goals to be pursued. Finally, the idea of permitting the offender to have a choice in his punishment is not completely unsupported. Geoffrey Sayre-McCord argues that individuals should choose amongst various punishment plans to repay for an offense (47). Such a penal structure allows individuals to take responsibility and reimburses society with a proportional penalty. However, one may take issue with this potential solution on the grounds that such a solution has two counterintuitive implications: sentencing and asymmetric power relationships (48). As for the former, one might think that offenders will always choose the minimal possible punishment for their crime. Or even worse, drawing from the trial of Socrates, the offender may go as far as to argue that he should be rewarded, not punished. As for the latter, one might contend that an asymmetric power relationship still maintains within this proposal. Namely, it seems to be the case that the judge or jury in question is still more powerful than the offender because the former have the final say on the punishment. To salvage this proposal, it is necessary to assuage these concerns about sentencing and asymmetric power relationships. To each concern, there are two considerations that ought to be considered. With the concern of sentencing, two factors are worth considering. First, the proposal is pragmatically worthwhile because it leaves open the possibility that one chooses a punishment that is unlike a minimum sentence and is actually more beneficial. Here, instead of spending time in prison, an offender may choose to engage in public work programs. The possibility of a punishment that differs from the minimum sentence, but is actually beneficial, is an upshot of this view. Second, extreme sentencing is rejected. For example, take the case where a serial killer proposes the punishment of a $20 fine. In this case, it is reasonable to suppose that either (1) the prosecutor in the given case would propose a much more reasonable punishment for the crime or (2) that the judge and jury would consider the reasonableness of the proposal in question when making their determination (49). As a result, extreme sentencing would rarely occur. Rather, a domain of reasonable alternatives to punishment would become socially acceptable, perhaps including minimum jail time and participation in public work projects. Therefore, regarding sentencing, there are pragmatic benefits and reasonable constraints that bolster this proposal against challenges. A more concerning objection presses on the power dynamics of sentencing, given that the judge or the jury still hold a degree of power over the offender. Here, two considerations are important. First, while it is the case that the judge or jury exercises power over the offender, the degree of asymmetry in the relationship is noteworthy. Notably, according to the proposal herein defended, judges and juries exercise less power over the offender than they currently do. Although the proposal does not completely rid itself of this asymmetry, the proposal should pragmatically be adopted, given its upshot of reducing the current asymmetry. Second, in an ideal world, judges and juries would be benevolent and strive to engage in symmetric relationships. However, in practice, there is a concern that judges and juries would overly exercise this asymmetric power. With this in mind, it is questionable whether the concern over asymmetry solely hinges on the proposal herein defended. Rather, it seems that the quality of judges and juries is important. Thus, it may not be the case that the asymmetric power dynamic completely hinges on the account of punishment that has been offered; rather, in addition to this proposal, it seems that work should be done to reform judgeships and juries, so as to further eliminate the asymmetric power relation. Aside from these concerns regarding details of this proposal, one could argue that the solutions offered to ameliorate punishment are impractical in regard to the modern penal society. Such a claim can be based on concerns with the current structure of the penal system or on larger societal concerns. In regard to the former, it could be argued the modern penal system is incapable of adjusting to the recommended changes. For example, an institution—most likely schools—would be required to teach courses on the law, requiring an overhaul of the current curriculum. Similarly, preparing authorities to engage in discourse with offenders may require training and some type of incentivization. However, both of these challenges are easily refuted. Namely, these solutions could be gradually incorporated into the penal system over time, thereby allowing for individual and institutional adjustment. Rather than implementing a radical change, change over time would ease the economic burden incurred by improving the penal system and also allow for individuals to change their biases towards offenders. Moreover, schools alter their curriculum as they incorporate new requirements, such as physical education. Hence, instituting a minimum requirement for knowledge of the law appears feasible. A greater practical concern is the need for societal change as the penal system reforms. It would seem paradoxical if the penal system reduced the asymmetry of the offender-authority power relationship, but society still stigmatized offenders. The ongoing stigmatization takes on various forms: increased policing, reduced housing opportunities, or reduced employment opportunities (50). While this is indeed a legitimate concern, it misunderstands the aims of this paper. I believe that these changes are without a doubt necessary when addressing the issue of punishment, however, this paper only seeks to examine the legal penal system. These societal concerns—while important to improving punishment—appears outside the bounds of this paper. Nevertheless, I acknowledge that the entirety of punishment, beyond the legal penal system, must be examined to create a more just society and to ensure that there is no asymmetry between the offender and society after the former has repaid for his offense. IV. Conclusion According to Michel Foucault, “western man has become a confessing animal” (51). Perhaps, however, it is better said that man has become a “punishing animal.” While this paper has only addressed legal punishment—that conducted by police, judges, and prisons—punishment is a societal phenomenon. From schools, to homes, to prisons, punishment is everywhere in society. The genealogy of legal punishment that was presented at the beginning of this paper illustrates that punishment is a fundamental derivation of man’s nature. While punishment may not be natural to man, it is a result of his nature. As such, a summary on the conclusions of this paper will help delineate the human nature that influences penal practice. The ideal of punishment was shown to have both primary and secondary goals. The most important of these goals is order, yet punishment aimed at order requires relationality. The nature of relationships, in the ideal penal theory, were shown to be fair and symmetric. However, when juxtaposed to the realities of modern punishment, it became evident that practical punishment was heavily based on the creation of asymmetrical relationships between the offender and penal authorities, thereby devaluing the human nature of the offender. A combination of increased agency and increased discourse was proposed as a means to reduce this inherent asymmetry. By empowering the offender, the penal system appears to become more just. These solutions seem promising and feasible, withstanding refutations that challenge the accounts provided. Although this paper has addressed punishment, some changes are needed beyond punishment, regarding the social and economic burden that punishment places on the offender and those associated with the offender. Moreover, work must be done to examine the effects of this paper’s paradigm on innocent individuals that have been convicted of an offense. However, legal punishment has been addressed in these pages. This is only one step towards this more just society. Such reforms are possible, among intellectuals and society-at-large: the ideal is not out of sight. Endnotes 1 The list of those involved in “legal punishment” that is provided above is non-extensive. From here on, “punishment” will refer to “legal punishment,” unless otherwise specified. 2 The United States is used as the case study of this paper for two reasons: the prevalence of punishment in the United States and the author’s familiarity with the American punishment system. 3 See the post-modern and post-structural schools of thought. For the former, see Friedrich Nietzsche’s Thus Spoke Zarathustra . For the latter, see Gilles Deluze and Félix Guattari’s Anti-Oedipus: Capitalism and Schizophrenia . 4 See the difference between Thomas Aquinas and Friedrich Nietzsche. For the former, see Aquinas’ On Law, Morality, and Politics . For the latter, see Nietzsche’s Thus Spoke Zarathustra . 5 Nietzsche, Friedrich, Nietzsche: On the Genealogy of Morality (Cambridge Texts in the History of Political Thought) (Cambridge: Cambridge University Press, 2007), 41. 6 Nietzsche, Thus Spoke Zarathustra (NewYork: Penguin Books, 1969), 123; Rousseau, Jean-Jacques, The Discourse and Other Early Political Writings (Cambridge: Cambridge University Press, 1997), 131. 7 Hobbes, Thomas, Leviathan (Indianapolis: Hackett, 1994), 75. 8 Augustine, City of God (New York: Bantam Doubleday Dell, 1958), 452-453. 9 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993). 10 Carter, James, Law, Its Origin, Growth and Function (London: Forgotten Books, 2018), lectures 1-5. 11 The idea of “monopolization of the means of violence” comes from sociologist Max Weber. 12 Fassin, Didier, The Will to Punish (New York: Oxford University Press, 2018), 47-51. 13 Nietzsche, Nietzsche: On the Genealogy of Morality , 40. 14 Foucault, Michel, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1995), 93-4. 15 Rabinow, Paul, Truth and Power: The Foucault Reader (New York: Pantheon Books, 1984), 85. 16 Fassin, Didier et al., At the Heart of the State: The Moral World of Institutions (London: Pluto Press, 2015). 17 Locke, John, Two Treatises of Government (Cambridge: Cambridge University Press, 1960), 322-323. 18 Nietzsche, Nietzsche: On the Genealogy of Morality , 53-54. 19 Ibid, 40. 20 Foucault, Discipline and Punish , 256. 21 Fassin, The Will to Punish , 76-77, 83. 22 I thank Sotonye George for the point. 23 The need or want of the debtor creates this asymmetry. The asymmetry can also be produced due to natural inequality or dire circumstances. However, within this dynamic, the agreement is fair as both parties reasonably agree to it within the asymmetric relationship. 24 Feeley, Malcolm, The Process is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979), xv; Foucault, Discipline and Punish, 268. 25 Nietzsche, Nietzsche: On the Genealogy of Morality , 20, 40. 26 Foucault, Discipline and Punish , 232. 27 Revenge on the individual level is prohibited, but modern law does not preclude the idea of institutional vengeance. 28 Rabinow, Truth and Power , 85. 29 Fassin et al., At the Heart of the State . 30 Fassin, The Will to Punish , 69. 31 Foucault, Discipline and Punish , 170-184, 266-268. 32 Ibid, 53. 33 Fassin, The Will to Punish , 72-74. While it may be possible that these emotional pathways have or include some rational content, appealing to emotions deviates from the original appeal to strict rationality associated with deterrence. 34 Foucault, Discipline and Punish , 261. 35 Fuller, Lon L., The Morality of Law (New Haven: Yale University Press, 1964), 162. Modern legal systems seem to suppose human responsibility in punishment. This seems to be a key tenet of rehabilitation. 36 Heidegger, Martin, The Question Concerning Technology and Other Essays (New York: Garland, 1977), 35. 37 Foucault, Discipline and Punish , 265. 38 Connolly, William E., The Ethos of Pluralization (Minneapolis: University of Minneapolis Press, 1995), 45. 39 Fassin, The Will to Punish , 75-77. 40 Nietzsche, Nietzsche: On the Genealogy of Morality , 41. 41 See Scanlon, Thomas M., What We Owe to Each Other (Cambridge: Belknap Press, 1998); Rawls, John, Justice as Fairness: A Restatement (Cambridge: Cambridge University Press, 2001), 5-6; Miller, David, “Justice” in The Stanford Encyclopedia of Philosophy (Fall 2017). 42 Connolly, The Ethos of Pluralization , 45. 43 Fassin, The Will to Punish , 72-77. 44 See Plato, Plato: Complete Works (Indianapolis: Hackett, 1997), and Xenophon, Xenophon: Memorabilia, Oeconomicus, Symposium, Apology (Cambridge: Harvard University Press, 2013). One might argue that the trial of Socrates is the pinnacle of injustice. Yet, not only is such a position disputed, but my proposal solely attempts to schematically draw upon this example. I thank Tianyu Zhou for pushing me on this point. 45 Plato, Plato: Complete Works , 1402. 46 By allowing the judge or jury to decide between the punishments proposed by the prosecution and defense, the convicted offender is still punished if he proposes a reward as his punishment, as was the case in the trial of Socrates. 47 Sayre-McCord, Geoffrey, “Criminal Justice and Legal Reparations as an Alternative to Punishment,” Philosophical Issues no. 11 (2001), 505-506, 509. 48 I thank Morgan Cutts for pressing me to address this objection. 49 Note that this is an inclusive disjunction. 50 This list is not extensive but attempts to highlight some of the scenarios that affect offenders due to their offender-status. 51 Foucault, Michel, The History of Sexuality: An Introduction (London: Penguin, 1990), 59. References Aquinas, Thomas. 2002. On Law, Morality, and Politics. Kindle Edition. Edited by William P. Baumgarth and Richard J. Regan. Translated by Richard J. Regan. 2nd ed. Cambridge, MA: Hackett Publishing Company, Inc. Arendt, Hannah. 1958. The Human Condition . 2nd ed. Chicago, IL: University of Chicago Press. ———. 1968. Between Past and Future . New York, NY: The Viking Press. Aristotle. 2014. The Complete Aristotle . Edited by Jonathan Barnes. Bollingen Series. Princeton, NJ: Princeton University Press. http://www.feedbooks. com/book/4960/the-complete-aristotle. Augustine. 1958. City of God . New York, NY: Bantam Doubleday Dell Publishing Group Inc. Carter, James. 2018. Law, Its Origin, Growth and Function: Being a Course of Lectures Prepared for Delivery Before the Law School of Harvard University . London, UK: Forgotten Books. Connolly, William E. 1995. The Ethos of Pluralization . Minneapolis, MN: University of Minneapolis Press. Deleuze, Gilles, and Felix Guattari. 1983. Anti-Oedipus: Capitalism and Schizophrenia . Translated by Robert Hurley, Mark Seem, and Helen R. Lane. Minneapolis, MN: University of Minnesota Press. Durkheim, Emile. 1964. The Division of Labor in Society . Translated by W.D. Halls. New York, NY: Simon and Schuster. Fassin, Didier. 2018. The Will to Punish . Edited by Christopher Kurz. The Berkeley Tanner Lectures. New York, NY: Oxford University Press. http://www.oxfordscholarship.com/view/10.1093/oso/9780190888589.001.0001/oso- 9780190888589 Fassin, Didier, Yasmine Bouagga, Isabelle Coutant, Jean-Sébastien Eideliman, Fabrice Fernandez, Nicolas Fischer, Carolina Kobelinsky, Chowra Ma- karemi, Sarah Mazouz, and Sébastien Roux. 2015. At the Heart of the State: The Moral World of Institutions . Translated by Patrick Brown and Didier Fassin. Anthropology, Culture and Society. London, UK: Pluto Press. http://library1.nida.ac.th/termpaper6/sd/2554/19755.pdf. Feeley, Malcolm. 1979. The Process Is the Punishment: Handling Cases in a Lower Criminal Court . Russell Sage Foundation. Foucault, Michel. 1995. Discipline and Punish: The Birth of the Prison . Translated by Alan Sheridan. 2nd ed. New York, NY: Vintage Books. Foucault, Michel. 1990. The History of Sexuality: An Introduction . Translated by R. Hurley. London, UK: Penguin Books. Foucault, Michel. 1977. “Intellectuals and Power.” In Language, Counter-Memory, Practice: Selected Essays and Interviews . Edited by Donald Bouchard. Ithaca, NY: Cornell University Press. Fuller, Lon L. 1964. The Morality of Law . 1st ed. New Haven, CT: Yale University Press. Heidegger, Martin. 1977. The Question Concerning Technology and Other Essays . Translated by William Lovitt. New York, NY: Garland Publishing, Inc. Hobbes, Thomas. 1994. Leviathan . Edited by Edwin Curley. Indianapolis, IN: Hackett Publishing Company, Inc. Locke, John. 1960. Two Treatises of Government . 1st ed. Cambridge, UK: Cambridge University Press. Miller, David. 2017. “‘Justice.’” In The Stanford Encyclopedia of Philosophy (Fall 2017 Edition) . Moore, Michael. 1987. “The Moral Worth of Retribution.” In Responsibility, Character, and the Emotions: New Essays in Moral Psychology . Edited by Ferdinand Shoeman. New York, NY: Cambridge University Press. Nietzsche, Friedrich. 1969. Thus Spoke Zarathustra . Edited and translated by R. J. Hollingdale. New York, NY: Penguin Books. ———. 2007. Nietzsche: On the Genealogy of Morality . Edited by Keith Ansell-Pearson. Translated by Carol Diethe. Cambridge Texts in the History of Political Thought. Cambridge, UK: Cambridge University Press. Plato. 1997. Plato: Complete Works . Edited by John M. Cooper. Associate editor D. S. Hutchinson. Indianapolis, IN: Hackett Publishing Company, Inc. Rabinow, Paul (Ed.). 1984. Truth and Power: The Foucault Reader . Pantheon Books . Rawls, John. 1993. Political Liberalism . 1st ed. The John Dewey Essays in Philosophy. New York, NY: Columbia University Press. ———. 2001. Justice as Fairness: A Restatement . Edited by Erin Kelly. Cambridge, UK: Cambridge University Press. Rousseau, Jean-Jacques. 1997. The Discourse and Other Early Political Writings . Cam- bridge, UK: Cambridge University Press. Sayre-McCord, Geoffrey. 2001. “Criminal Justice and Legal Reparations as an Alternative to Punishment.” Philosophical Issues , no. 11: 502–29. https:// www.jstor.org/stable/3050612%0A. Scanlon, Thomas M. 1998. What We Owe to Each Other . 1st ed. Cambridge, MA: The Belknap Press of Harvard University Press. Taylor, Charles. 1984. “Foucault on Freedom and Truth.” Political Theory , no. 12(2): 152–83. http://www.jstor.org/stable/191359. Xenophon. 2013. Xenophon: Memorabilia, Oeconomicus, Symposium, Apology . Edited by Jeffrey Henderson. Translated by E. C. Marchant and O. J. Todd. Cambridge, MA: Harvard University Press. Previous Next

The Imagined Isle Irish Catholic Identity in the Restoration Era Nathan Mainster Brown University Author Matthew Dowling Armaan Grewal Kara Huang Shreya Raghunandan Rudra Srivastava Editors Fall 2018 This essay explores to what extent an Irish Catholic nation formed in the Restoration Era. The Bleeding Iphigenia, written by Nicholas French, Bishop of Ferns, in the early 1670s and published in 1674, informs the reader of the principal metaphor which governs the tract: “The author hath drawne another Iphigenia of the body of a noble, ancient Catholic Nation clad all in red Robes.” He then claims to speak on behalf of said nation, writing that he, “presents to the view of our gracious King Charles the second a Catholic People, his faithful subjects wounded by thieves, and left half dead.” His request is also spelled out: “I beseech you, gentle Reader, pray to God for my afflicted Country, and for the Catholic Religion therein persecuted.”[1] The confidence with which French asserts the existence of a Catholic nation is striking; most scholars, including Joseph Leerssen, Tom Garvin, and Jim Smyth, maintain that neither an Irish Catholic nation nor a concept of nationalism appeared until the eighteenth century. The inherent social and political complexities of the Restoration era (1660-88), originating from a gaping ideological and power vacuum following the frenetic confusion of the Interregnum, coupled with the self-interested imperative of rebuilding of pre-Cromwellian life, effectively forestalled religious or national coalescence. Experiences of the war and of the post-war settlement did not fall neatly along confessional lines; in many cases, Protestants and Catholics of certain classes or political persuasions had more in common with each other than with their co-religionists. However, in the discursive realm, the confusion of the Restoration era provided fertile ground for the unification of the Irish Catholic interest. By the time of the Glorious Revolution, Protestant lawyer Richard Cox claimed that, “the Old English...are now so infatuated and degenerated, that they do not only take part with the Irish, but call themselves Natives.”[2] Protestants and Catholics clashed bitterly over a multitude of issues, and the politics of memory ensured that battles fought during the 1640s were replayed in an intellectual context. In an attempt to justify their positions during the Interregnum, Irish Protestants aggravated the memory of the 1641 rebellion, focusing on the epoch wherein Catholic loyalty to the crown may have been called into question. New pamphlets emphasizing the barbarity of the Irish Catholics during said revolt proliferated, and old ones, such as Sir John Temple’s famous 1646 account, enjoyed consistent reprintings. The Irish parliament indirectly participated in these politics of paranoia by forming a “committee for the preservation of the rights of Protestants” in Ireland, in response to falsified reports of another rebellion.[3] Combined with the bitter realities of mass dispossession, political disenfranchisement, and marginalization, one would think that the volatile Restoration period would foster an atmosphere conducive for Catholic nationhood. However, such a notion was not fully-fledged during the Restoration. Instead, the time period laid the ideological framework for such a concept by embedding the notion of Ireland as a Catholic nation in propagandistic discourse, thus recognizing Catholic unity as a desirable goal. Though Irish Catholic nationhood did not develop in a visible sense, it became a standard theme of contemporary political dialogue, in which several complex versions of unity were promulgated to support the view of individual authors. The idea of nationhood emerged from the fray, guaranteeing that following the Restoration period “Ireland” became a decidedly Catholic entity. The Divisions in Catholic Irish Society The disappointing reality of Catholic Ireland in the Restoration period was one marred by entrenched intra-communal conflict. The ancient divisions between the Old English and Gaelic ethnicities, the two major Catholic groups, were far from obscured. Though intermarriage and centuries of interaction had helped to diffuse certain quotidian cultural distinctions, sentiments of prejudice, distrust, and alienation overwhelmingly predominated.[4] State-sponsored discrimination, even by the likes of Catholic heroes such as the Earl of Tyrconnell, and mutual animosity, served to definitively prevent Catholics from cooperating across ethnic lines.[5] Irish Catholics were no more unified by the experience of the land settlement. On 23 October 1641, sources suggest that Irish Catholics possessed 69 percent of Ireland’s profitable land; during the Interregnum, this figure was reduced to 10 percent. However, when the Stuarts were restored to the throne, Catholic land ownership increased significantly to 30 percent due to the briefly-operational court of claims, which rather clumsily attempted to restore unjustly dispossessed Catholics, royal sympathy, and access to patronage.[6] This rather arbitrarily orchestrated and haphazard process ensured that Catholic experiences with the settlement were myriad. Spokesmen for dispossessed Catholics such as Sir Nicholas Plunkett and Richard Talbot, and later the Earl of Tyrconnell, spent much of the 1660s at Whitehall lobbying for the restoration of their co-religionists. They asserted that the 1648 peace entitled Irish Catholics to full restoration of property of which they had been stripped by Parliamentarians, and as such undermined the legitimacy of the Cromwellian claims.[7] Perhaps the greatest single effort occurred in 1670, when 52 dispossessed Irish Catholics and their supporters sent Talbot to present a petition to the King and parliament for full Catholic restoration. Delivered in the name of the King’s, “Most distressed subjects of your kingdom of Ireland who were outed of their estates by the late usurped government and are not yet restored,” the petition claimed that under the terms of the 1648 peace treaty, most, if not all, Catholics were entitled to repossession, and requested an “Act of Indemnity” and fair revision of the settlement act. The argument was underscored by a narrative of unwavering Catholic loyalty from the Interregnum to the present in the face of Cromwellian temptation. This argument fell on deaf ears: the Crown rejected the proposal, citing the material and political benefits already wrought by the land settlement.[8] The land settlement meant that 20 percent of dispossessed lands did return to Catholic hands. Patronage or sound political connections proved to be of paramount importance in procuring articles of restoration, and men such as Viscount Muskerry, the Marquis of Antrim, the Talbots of Malahide, and the Earl of Carlingford found their estates restored or expanded thanks to covert political machinations.[9] Consequently, a powerful minority of “new interest” Catholics emerged and effectively stonewalled any legislation altering the settlement throughout the Restoration period. Indeed, they wholeheartedly endorsed bills to confirm their titles at the expense of their unrestored co-religionists. In 1678 and 1680, Lord Lieutenant Ormond unsuccessfully attempted to call a parliament to pass legislation which would fully complete the land settlement. Under the proposed acts, the dealings of the court of claims were to be formalized and a commission was to be entrusted to investigate uncertain titles. In other words, further possibility of restoration would be curtailed. Predictably, responses to the bill polarized around the experience of the settlement; restored Catholics such as Colonel John Fitzpatrick and Nicholas Taaffe, Earl of Carlingford actually traveled to London to support the legislation and to counter the claims of unrestored Catholics or their advocates who simultaneously pleaded their case at Whitehall. The legislation was eventually killed in its crib due to the unstable political climate resulting from the so-called popish plot, but the similarly difficult experience of James II in attempting to overturn the land settlement provides equally illuminating insight. Upon his accession, distraught Catholics rejoiced over the prospect of a co-religionist as their sovereign and hopes for a reversed land settlement ignited anew. Yet once again the vocal minority of restored Catholics consistently and forcefully lobbied against any alterations. In 1689, the Earl of Tyrconnell, new Lord Deputy of Ireland, fulfilled his dream of the past two decades and called a parliament to overturn, or at least drastically transform, the land settlement. His efforts were met with immediate opposition. A petition presented to James composed by “new interest” Catholics and Old Protestants warned of the inevitable downturn the Irish economy would face should land be confiscated from the settlement’s beneficiaries. It rejected the disaffected Catholics’ contentions that the court of claims did not operate for sufficient time to evaluate the Irish situation effectively, and affirmed the conservative Declaration for Ireland of November 1660 as the basis for the settlement. The petition ended with a cautionary warning of desertion from the Jacobite camp if the land settlement was overturned: “Suffer me to make one step more, and query: Whether the Catholic Purchasers now to be turned out of possession, will join heartily with those that enter upon them?” This faction aligned themselves with Old Protestant representatives in the House of Lords to block the legislation. In the end, those in favor of repeal represented the larger interest, and James, forced to choose between war funding and bankruptcy, conceded to their demands and began to repeal the settlement. Even religion itself proved to be a divisive force. Questions of the monarch’s role in ecclesiastical structures and Irish Catholics’ often contradictory obligations to Rome and London precipitated not only acrimonious debate, but also persecution and bitterly vindictive conflict. These debates found their visible manifestation in the proposed 1661 remonstrance. This petition, attempted to reconcile the dissonance in Catholic theo-political theory created by their dual loyalty by affirming the supremacy of secular loyalty to the crown. The petition was also a political document responding to contemporary Stuart policy, whose ultimate object was to assert the right of Catholics to participate in a political society which increasingly appeared to cater solely to Protestant interests.[10] The remonstrance emphasized the Catholic duty of, “being entrusted by the indispensable Commission of the King of Kings with the Cure of Souls...and teaching the People that perfect Obedience...they are bound to pay to your Majesties Commands,” yet they still found themselves, “loaden with Calumnies, and persecuted with severity.” They lamented that they could not “with freedom appear to justify [our] Innocence, all the Fictions and Allegations against them are received as undoubted Verities;” and thus seek to “humbly beg your Majesties pardon, to vindicate both by the ensuing Protestation” their loyalty. The petition claims that, “These being the Tenets of our Religion, in point of Loyalty and Submission to your Majesty’s Commands, and our dependence of the See of Rome no way intrenching upon that perfect Obedience...we are bound to pay to your Majesty,” and elaborates on these “tenets”: "We do acknowledge and confess your Majesty to be our true and lawful King, supreme Lord, and rightful Sovereign of this Realm of Ireland, and of all other your Majesties Dominions. And therefore we acknowledge and confess our selves to be obliged...to obey your Majesty in all Civil and Temporal Affairs ... as the Laws and Rules of Government in this Kingdom do require at our hands. And that notwithstanding any power or pretension of the Pope... or by any Authority, Spiritual or Temporal, proceeding or derived from him, or his See, against your Majesty, or Royal Authority, we will still acknowledge and perform, to the uttermost of our abilities, our faithful Loyalty, and true Allegiance to your Majesty."[11] The remonstrance prioritized temporal loyalty over spiritual, denied the pope any tangible jurisdiction over monarchs, and implied that the pope’s role in secular affairs was an advisory one devoid of real political power if the monarch opposed his judgment. It was signed by 98 Catholic peers and sent to Ormond in 1661. The document immediately provoked rancorous debate. Most Catholic clergymen, who necessarily relied on Rome for patronage without a legal, state-sponsored episcopate of the Gallican variety, followed the lead of their backers and refused to sign the document for its judgments regarding papal power.[12] Bishops Anthony MacGeoghegan of Meath and Nicholas French of Ferns pamphleteered vociferous opposition to what they considered religious treason. Peter Walsh, one of the few clergymen who backed the remonstrance, who was also a supporter and confidant of Ormond’s, defended the document in various written works throughout the Restoration period. Formal protests were submitted, and a synod of Catholic clergymen in 1666 meant to resolve the issue only further retrenched animosity.[13] The movement collapsed and no remonstrance was ever submitted to the Crown.[14] Yet the ideological divisions within the Catholic community by no means ended with the defeat of the remonstrance. Not only did the questions it raised dominate clerical discourse for the remainder of the Restoration period, but the internal debate it generated also had concrete implications for the shape and character of the Restoration church. The appointments of the fervently anti-remonstrant Peter Talbot to the Archbishopric of Dublin and Oliver Plunkett to that of Armagh in 1669 fundamentally transformed the politics of Catholic ecclesiastical structures. Encouraged by the death or marginalization of many of the remonstrant clergy, Talbot embarked on a campaign of vindictive persecution against the remainder. They were relieved of official positions and denied material support. He was reported to have proudly proclaimed that the remonstrant clergy “would all hang” and ruthlessly purged them of all offices within the church.[15] Furthermore, the pamphlet debate continued in full fury well into the 1670s and did little to mend fissures in Catholic ecclesiastical ideology. Given these firmly-rooted ethnic, economic, and spiritual divisions, any claims that a common Irish Catholic nation made itself visible in the Restoration would be extremely difficult to substantiate. Yet, do these fissures necessarily mean that no Irish Catholic nation developed at all? Contemporary pamphleteers did not think so. Nicholas French’s The Bleeding Iphigenia was by no means the only tract which referred to the Irish Catholics as a “nation.” In fact, every side of Irish Catholic discourse in the Restoration era over the aforementioned issues of the land settlement and the Remonstrance often addressed “All Irish Catholics,” either described a coherent Irish Catholic nation or called for one, compartmentalized all Catholic experiences into one which fit their theses, and denounced efforts to divide the Irish Catholic polity in a tract which was contributing to just such a phenomenon. Though each version of history, each founding memory, and each sense of what “Irish Catholic” meant was distinct, all tracts contended that their prescribed formula could create this new idea or explain its existence. How is this difference between discourse and practice possible? Perhaps the issue arises from how the modern reader perceives nationhood. Instead of conceptualizing it concretely, as manifested in a coherent body of united individuals with a common ethnicity, culture, or interests, it may be more accurate to conceive of it as Ernest Renan did: as a people unified through common experiences and shared memories.[16] If we conceptualize it as such, it becomes evident that the idea of Irish Catholic nationhood appeared constantly in written work of the time, not as one singular, exclusively-defined identity, but as a fractured concept which agreed on little more than the fact that such an idea existed or should exist. As we have seen, Irish Catholic experiences varied widely in the Restoration era. Yet, discourse often attempted to ignore entrenched complexities in order to impose upon reality a set of homogenous experiences which all Catholics ostensibly suffered together. The reconstruction of history – over the recent war as well as more distant moments – provided the memorial basis for Catholic unity in the discursive realm. In using historical memory as a propaganda tool, each author to be examined asserted that their treatises could bring or explain Catholic unity under their terms, which often sought to justify or persuade the legitimacy of a short-term ambition. * * * The rhetoric of unity regarding the land settlement will be examined first. As Danielle McCormack has noted, the success of Catholic lobbying for restoration in this period was principally predicated upon proving the legitimacy of the 1648 peace, whose indemnity clause would directly contradict the Restoration policy of inordinately limiting the potential of Catholic innocence.[17] To support their positions, Catholic advocates of restoration simplified the 1640s into an era of nationalized, confessional conflict of English Protestant versus Irish Catholic. Yet, though the search for material interests undeniably acted as the principal imperative for this type of language, the effects of its presence took on quite a different form. Pamphleteers employed discourse as a bandage to patch up undeniably present acrimony by framing the past as an era of unity, and thus implied either that unity still existed or could be attained, and affirmed the image of Ireland as a state closely associated with Catholicism. The anonymously written pamphlet Narrative of the Settlement and Sale of Ireland from 1668 articulates the obdurate, oppositional position taken by Catholics such as Nicholas French and Oliver Plunkett, espousing a view of history wherein Irish Catholics since 1641 had displayed indefatigable, flawless loyalty, yet nevertheless had been betrayed in the land settlement by Ormond, the king’s ministers, and self-interested, land-grabbing Protestants.[18] This ideological history is intended to lump all Catholic experiences into a single, inflexible memory so as to purge the discourse of the complexities of the social reality and Catholic culpability for wartime atrocities and subsequently affirm the validity of Catholic claims to land. The opening line of the tract states that the author’s intention is to recount, “the sad and deplorable state of the Irish Nation, and the apparent injustice, and inequality used in the present Settlement of that Kingdom.”[19] He substantiates this claim of extant Irish nationhood by claiming the existence of a force which binds them all together: “It cannot be denyed, but that the Roman Catholicks of Ireland have infinitely suffered, during the late Usurped Government.”[20] A few sentences later, he entirely omits the qualifier of Catholicism, believing it instead to be implicit in the statement wherein he simply describes the sufferers as “the Irish alone,” thus conveniently ignoring the significant portion of Irish Catholics (and Protestants) whose experiences differed from those of his vision of a unified Catholic community collectively double-crossed by the settlement, and retrenches the link between Irishness and Catholicism.[21] Having thus postulated the existence of an Irish Catholic nation indivisibly united by the universal experience of dispossession, and casually conflated Irishness with Catholicism in a manner which inextricably and exclusively binds the two identities, the author then recounts a historically revisionist understanding of the past to defy Protestant land claims. As the antithesis to his purportedly unified Catholic body, he conceives of the enemy as one equally monolithic Protestant beast, fueled by greed, vengeance, and unfaltering support of Cromwell, blurring all nuance present in the equally complex reality of Irish Protestantism. He claims that the land settlement was legislated and supervised entirely by Protestants, and transmuted into law by, “a Parliament, which met on the 8th. day of May 1661. The Lower House of this Parliament was all composed of Cromwellists, and but very few of the Irish Peers were admitted to sit in the House of Lords, under the pretence of former Indictments. This Parliament made the first Act of Settlement...This Act decides all the doubtful expressions of the Declaration in favour of the Cromwellists, and to the disadvantage of the Natives, it allows only a Twelve-months time for the tryal of Innocents; But those Irish Gentlemen who served His Majesty abroad, together with the generality of the Nation pretending to Articles, (half a score persons only excepted, who were particularly provided for) are forever debarred by this Act, to recover their Estates without previous Reprisals, which is a thing not to be had in nature.”[22] Several important rhetorical devices are present in this passage. First, the word “Catholic” is never uttered. It is implicit in the word “Irish,” which is placed in direct opposition with a “Cromwellist” interest. The pamphlet, whose object is a searing takedown of former Protestant royalists such as the Earl of Clarendon or the Duke of Ormonde, erases their monarchist credentials by portraying them as greedy post-Cromwellists attempting to deprive loyal Irish Catholics of their land much like the Lord Protector did. Thus “Cromwellist,” in this context, does not necessarily refer to political leanings; rather, it likely denotes any Protestant beneficiaries of the land settlement regardless of their political affiliation during the war. This statement confessionalizes not only nationality, but also political loyalties during the war in an attempt to invalidate Protestant claims under accusations of treason. The essentialist implication that Protestants by nature are inherently inclined towards parliamentarianism is a cogent reduction of the historical narrative meant to promote the author’s vision of the Irish Catholic: resolutely royalist yet deferentially shocked at the loss of their lands to the “enemy.” The author underpins his position with a host of ethical and legal arguments. Morally, he claims that the: “parties pretending are the Irish Proprietors, and the London Adventurers: The first enjoyed it for so many ages...and they lost it at length upon the account of Loyalty, fighting for the Kings Interest against the Murderers of his Royal Father: the last...have no other Title but what they derive from the Ordinance of an usurped Government, for having disbursed vast sums of Money to countenance Rebellion, to pull down Monarchy, and put up a pretended Commonwealth. And yet the Land is adjudged for them, and confirmed to them and their Heirs forever...”[23] Furthermore, Cromwellian settlers, he asserts, are not technically entitled to their land until the 1641 Catholic, “rebels be declared by the two Houses of Parliament to be wholly conquered; until a Commission….[examines] who are the Rebels, and who are Innocents.”[24] Oftentimes, the distinction between logos and ethos are blurred. The author laments that the “Duke of York should now enjoy all that Land, by no other Title but that of the Regicides. The Land was given them by a Tyrant, for murthering the King, let the World judge of the goodness of their Title.”[25] This rather incisive averment insinuates that James’s land claim is illegal precisely because of its immorality; it was acquired through the crime of regicide. Implicit in this statement, of course, lies the contention that all Protestant claims to land are void by virtue of their ostensible parliamentarian and thus regicidal tendencies. Yet, according to the author, Protestants alone controlled the outcome of the settlement and ensured that Catholic capacity for reinstatement was minimal. First, the Catholic gentlemen in exile with the King were never reinstated. Next, the Protestants made it so difficult to “qualifie an Innocent, that it should be Morally impossible to find any such” in Ireland.[26] In a final, devastating act, Parliament in 1664, “decreed, that no benefit of Innocency, or Articles, shall be allowed... to any of the Irish Natives.” [27] The King is absolved of all culpability in this grand Protestant conspiracy, and blame instead is placed on the greedy minister Clarendon and the Earl of Orrery, who, “assured to the King, that there was a sufficient stock of Reprisals to, “satisfy all interests” and thus maintain the loyalist credentials of the Catholics.[28] The Protestants, furthermore, are motivated by lustful material concerns, not love for the king. This passage is worth quoting at length: ...the first Minister of State...telling, as for a final reason, that the Protestant English Interest cannot be maintained in Ireland, without extirpating the Natives…. True Religion was ever yet planted by preaching and good example, not by violence and oppression: An unjust intrusion into the Neighbours Estate, is not the right way to convert the ancient Proprietors...And as to the present Settlement of Ireland, it is apparent to the World, that the Confiscation of Estates, and not the Conversion of Souls, is the only thing aimed at. If by the English Interest we understand the present Possession of the London Adventurers, and of Cromwell's Soldiers, there is no doubt it is inconsistent with the restoration of the Irish, neither can the New English Title to Land be well maintained, without destroying the old Title of the Natives; even as the Interest of the late Commonwealth was incompatible.[29] In this version of history, divisions within the Irish Protestant community are effectively erased. They are replaced instead by an immutable bloc of irreligious, selfish, politically radical colonialists labeled the “English interest” who use the cover of missionary work to ultimately destroy the Catholic Irish--or the natives, as the author would say--for the worldly sake of appropriating their property. The Catholic experience is presented with an equal lack of nuance. Ignoring the existence of legally restored Catholics, the author maintains that Ormond “is gone with all his Greatness, and the miseries of the poor Irish do still continue” and laments the state of “that Nation, who are deprived of the Benefit of Law, Justice, and public Faith,” of course referring to the Catholic nation.[30] Furthermore, this narrative of history does not stop with the Restoration. The author sees the struggle between Irish Catholic royalism and English and Scottish Protestant radicalism as ongoing, and uses the memory of the attempted Presbyterian coup by Colonel Thomas Blood and the English Civil War, as sufficient justification for promoting Catholic interest in Ireland: For that the true Interest of England (as relating to Ireland) consists in raising· the Irish as a Bulwark, or balance, against our English and Scotch Presbyterians….when the Presbyterian practises and Covenant began to disturb these Kingdoms, the Papists and Prelatiques in Ireland (as well as in England) joined their hearts and hands against Presbytery for the King. [31] Thus, in arguing for the overturn of the land settlement, the author of A Narrative constructs his vision of an Irish Catholic nation: a unified, loyal polity, whose history consists of having fought heroically during the war yet being tragically betrayed by the king’s selfish ministers and their Protestant and imaginably Cromwellian or neo-Cromwellian supporters. Though egregiously misrepresenting the actual experience of the war, the nature of the land settlement, and the complex character of confessional identity in Ireland, it serves as adequate foundational history for his equally distorted vision of a unified Catholic nation. His conflation of “Irish” and “Catholic” further embeds the image of the entity of “Ireland” as fundamentally Catholic, and ignores the serious ethnic, social, and theological distinctions of the population. This position, however, was met with backlash from other members of the Old English community. Archbishop of Dublin and celebrated anti-remonstrant Peter Talbot’s 1674 Duty and Comfort of Suffering Subjects is an essential piece to examine, not only because its message differs vastly from that of A Narrative, but also because its purpose is slightly different and adds a complex element to the debate.[32] This text was not written with the purpose of obtaining anything material, and grounds its arguments in theological rather than political justification. Just like the author of A Narrative, Talbot uses the concept of Catholic unity, justified by the common experience of 1641, to accomplish a distinct goal: to end what he sees as immoral and heretical practices. Talbot follows the lead of the author of A Narrative and addresses the pamphlet to all of the “Roman-Catholics of Ireland,” thus implying that he believes Catholic unity exists, and sets out to prove it on his terms.[33] His main area of concern is the ostensible Irish Catholic obsession with property, decidedly sinful in his eyes. He affirms, “that the Happiness of Man in this present state consists more in possessing the riches of a good Conscience than the conveniences of this world.”[11] Yet he recognizes that, “Tis the depraved condition of human nature which makes us affectionately covet...such paltry trash.”[34] The “paltry trash” referred to is property confiscated by the land settlement, and his treatment of the incident manages to be wholly out of touch with both the new interest Catholics and the dispossessed faction. Again, what is an Inheritance? A parcel of land whereof our Ancestors were Masters as long as they liu'd; which term of Life (the only interest any of them could pretend to) is valued but at seven years purchase: Is it reasonable then think you, to fix your hearts so…passionately upon that earth, as if your Souls were to turn into it as well as your Bodies? Poor Souls! After a mans death hee has no expectation of any good for his Temporal Estate, being quite out of all circumstances of enjoying the least convenience from it.[35] Talbot here makes the oft-vaunted religious claim that acquisitive interests are inherently sinful. Such a belief carries additional weight in the phrenetic context of the Restoration era and the politics surrounding the land settlement. His call for salvation to, “be your comfort, not that empty one of possessing estates already disposed” was an unequivocally bold statement, because the tract aims to unite Irish Catholics on its terms.[36] As we have seen, the land settlement polarized Irish Catholics along lines of the repossessed and the dispossessed. Talbot’s argument essentially claims both sides to be reprehensible. Talbot spends several lengthy paragraphs asserting that, “Disobedience to our King necessarily implies disobeying God,” and denounces rebellion, “against His Majesty’s Government, Person, or Subjects,” as religiously and politically unforgivable.[37] He then supplements his contention with a more political rationalization for the deleterious essence of material concerns: they lead to rebellion. He asks, “how can it be imagined that [God] will allow of so great a crime as rebellion upon any score….much less upon that meer Temporal motive of saying or regaining an Estate?”[38] Challenging the land settlement, if not explicitly an act of revolt, can easily lead to one. Thus, “Let not the vain hopes of better Times, or the desire of passing a short Moment something more commodiously plunge you into the intolerable miseries of Hellfire for all Eternity... You have lost your real Estates, let not Imaginary ones fool you...”[39] His principle over which Catholics could find unity is one of collective responsibility: either to stop pressing for restoration, or to ensure that their Catholic brethren lay down their claims. And the shared experience which provides the imperative for such collective responsibility? The war. Talbot’s idealized understanding of 1641 stands in direct opposition to the view espoused by the author of A Narrative, who argues that, “ The Irish insurrection...hath not been accompanied with that Insolence and Malice in the beginning...which...some Pamphlets have charged the Irish with.”[40] His view is more in agreement with the Protestant narrative which emphasizes Catholic atrocities and greed instead of monarchical loyalty. He writes: You have had experience of...Preachers who pretend great zeal to God and the King’s service, and yet, at the same time Rebellion, and Murders were proou'd against them. These are the men you must not give ear to, nor converse with, lest you be infected with their Doctrine and perverted by their Example….And yet if either these, or I, or an Angel from Heaven should go about to persuade you that it is lawful to molest your Protestant neighbors, or defraud them of their goods, or enter upon their possessions by any means or method which the Law of the Land doth not allow, give them no credit...[41] This theologically-underpinned incarnation of Catholic unity is derived from a necessity of repentance. Like that of the author of A Narrative, Talbot’s vision of a united Catholic Ireland is prescriptive rather than descriptive; a means to an end rather than a factually accurate statement. Old English discourse over the land settlement, then, engendered several iterations of an Irish Catholic identity, none of which were reconcilable with each other nor with reality. Yet there are striking methodological parallels: both tracts assume the existence of a united Catholic Ireland as a critical element of their rhetorical strategy. Such a rhetorical strategy was a conscious choice and the considerations that went into it should not be taken lightly. One may assume that claims of unity would be the most effective way to convince others of their point; unity was evidently an ideal that appealed to much of the literate Old English community. A Gaelic perspective on the land settlement and memory of the Cromwellian wars is essential to any comprehensive assessment of the extent to which Catholic Irish identity formed in this period. The relative paucity of surviving Gaelic sources for everyday native Irishmen renders any evaluation of their contribution to Catholic discursive identity problematic. Yet one does remain which can offer insight into the way the Gaels constructed their version of Ireland: Gaelic poetry. Historical memory in Gaelic poetry was a familiar concept by the time of the Restoration. For centuries, Irish poets evoked the names of legendary heroes, battles, and kings to draw a firm line connecting their patrons to extant days of Irish glory.[42] During the Restoration period, however, a salient change took place. Gaelic poets began to treat the Irish heroic past as more self-consciously legendary, and presented it in stark contrast with recent memories of English conquest. Every element of English culture, society, and politics was acrimoniously criticized with relentless vigor and poetic wit. As such, Dáibhí Ó Bruadair, the most renowned poet of the era, claims in his poem “Thou Sage of Inanity” that the English historical pedigree pales in comparison to that of the Irish.[43] He derides a defender of Ormond who claims, “That his father or himself or any offspring of that race E'er performed such deeds as those,” performed by the Irish, as having, “been hoaxed by thy conceit.”[44] Shameful, cowardly Englishness is placed in direct dialogue with powerful, resplendent Irishness. This theme is expanded into the cultural realm and the traditionally English conception of civil and moral superiority is shrewdly reversed. The Restoration-era poems of Ó Bruadair depict a cultured, refined Gaelic Ireland ruined by boorish English brutes representing Cromwellian plantation and the Restoration settlement. Ó Bruadair laments this tragic state, writing in his 1674 poem “Woe Unto Him Who Hath Failed”: Every prayerful, faultless, noble, charming chieftain of the flock, Scattered through the land of Fionntan, growing with no lowly growth, Who hath been compelled to part with state and wealth and native nook...”[45] These “Noble-born, cultured, and high-minded chieftains” have been replaced by “ignorant dullards” and “ostentatious upstart[s] swollen high with pompous pride” whose pastimes include “plundering maids, single, defenceless, in delicate health.”[46] The title of the poem from which the last excerpt is taken, “Proud as a Chief is the Bailiff,” embodies the contempt with which the Gaelic poets treated the English upstarts who believed that they represented the rightful, moral and political governing class of Ireland. As Joseph Leerssen has noted, the English language was often used as a signifier in Gaelic-language texts for Saxon incivility. Restoration-era poems often contained Gaelicized loanwords from English--such as “clóca” or cloak, “cóta” or coat, sbuir or spurs, buat or boot, sdocaidhe, or stockings, locaidhe, or curls, ráipéar, or rapier, and sgarfa, or scarf, which were deliberately employed to disrupt the rhythm and rhyme scheme of the poem; these intentionally painful interruptions easily communicated to the reader or listener the invasionary nature of the English settlers.[47] Ó Bruadair explicitly treats with the contamination of the Irish language in his 1675 “I Shall Put a Cluáin On Thee,” where he writes, “Now the Béarla Teibidhe is the language which Ó Lonargáin used to talk...on account of the excessively silly bombast of the poets in Freamhain.'' Béarla Teidbidhe, the dialect of Irish which more liberally utilized loanwords from other languages, functions as a literary device signifying the degradation and decline of the Irish language by “silly bombast.”[48] From a confessional perspective, theologian Francis O’Molloy printed a comprehensive overview of the Irish language in 1677, which contained a lengthy tract lamenting the seemingly concurrent decline of the Gaelic nobility and language, writing: Pity the people for want of literacy after the destruction of their letters...Ireland has fallen under the shower against the host of its ancestors. The music of tunes has not remained, nor proper instruction, nor learning. The Irish do not even understand the Irish language, they speak it carelessly, they do not read it with any propriety; they abandon it, and leave honour behind….If you ask them to read verses in their own sweet mother tongue...they cannot. This is what happened to the Irish from Ireland.[49] The use of language as a symbol for not only cultural, but also national distinctions, is essential to note here for two reasons. First, it places the bardic poet, master of the Irish language, at the center of Gaelic national identity. Gaelic poetry in this time was something of a moribund cultural relic, existing in a world that had long considered it a vestigial curiosity. Indeed, Ó Bruadair died hopelessly impoverished, and much of his later poetry focuses on this destitution.[50] Ascribing language a primary role in the formation of Irish identity assigns the poet a relevance which he had most certainly lost. Second, by linking language and idealized history, Gaelic poets implicitly grounded Irish national identity in both ancient and recent historical memory: the glorious past, the apex of Irish linguistic hegemony and its cultural byproducts; and the depressing present, wherein language is under threat of extinction thanks to an influx of English colonialists bent on aggressive acculturation of the Gaels. Such perceptions of English savagery are reflected in Gaelic poetic treatments of social class. Gradually, the English of all classes replaced the lower classes of all ethnicities as the paradigm of boorishness and stupidity. Prior to the Restoration period, foreigners were categorized with poorer Gaels in criticisms of the uncultured and barbaric enemies of refined Gaelic Ireland. It was a classist—as opposed to a nationalist—distinction. Yet, Restoration poetry increasingly defined the brutes as distinctly English “boors” whose humble patrimony did not warrant their wealth and status, and whose rough, bumbling language and contemptible manners stood in stark opposition to those of the refined, well-spoken Gaels.[52] This conflation of ancient and recent memory also featured heavily in political rhetoric surrounding Gaelic perspectives of James II and their high expectations for his rule. Leerssen affirms that Gaelic poets rejoiced upon James II’s accession, due to his heritage and Catholic faith; thus, poems from the period were tinged with an arrogant optimism. Diarmaid Mac Carthaigh, for example, writes, “Behold there the Gaedhil in arms...they have powder and guns, hold the cities and fortresses; the Presbyterians, lo, have been overthrown, and the Fanatics have left an infernal smell after them,” thus drawing on a recent memory of conquest. Several lines later, he remarks, “Prophets and saints in great numbers have prophesied that Erinn would sure get help at the promised time; by Thy wonderful power, O Christ, and thy nurse’s prayer, everything they predicted shall certainly come to pass.”[53] James II’s accession was lauded in both recent and ancient terms; it was an event foretold by ancient Irish history to relieve the Gaels of their more recent suffering.[54] By contextualizing the often disconnected quilt of Gaelic history within a framework grounded in fresh experiences of collective trauma sustained by a vaguely-defined group of people in “Erinn” devoid of very present internal distinctions, these Gaelic poets implicitly “nationalized” a confederated Ireland in opposition to “Fanatics”; Protestants. This concept of unity is underpinned by the trajectory of the word “Éire,” which underwent linguistic signification during the Restoration period from a term denoting specific dynastic regions to one which conveyed the entire island.[55] Furthermore, the Irish side of the dichotomy between English and Irish is not necessarily exclusive to the Gaels. In fact, it lended Gaelic history a quasi-democratic character; in defining Irishness as a set of cultural and linguistic practices in opposition to Englishness, anybody who agreed with this contemporary critical assessment of Englishness and indulged in or sympathised with Gaelic customs could subscribe to the ancient legacy of old Gaeldom. Whether this happened or not is not relevant; what matters is that this poetry laid the basis for Irish Catholic national identity. Like Old English discourse, its artificial construction of a Catholic Irish memory had serious implications for Irish nationalism; Joseph Leerssen notes that the rise of Irish nationalism in the eighteenth century was characterized by a fascination with and appropriation of Gaelic culture which crossed confessional boundaries, emphasizing the importance of a language, culture, and history in direct opposition with that of the English.[56] Yet there is one important caveat: Gaelic discourse surrounding the land settlement did not explicitly address unity transcending ethnic boundaries as much as it laid out the historical and cultural groundwork for an ostensible common experience. Gaelic writers erased dynastic distinctions, spoke of common experience, and denigrated English language, manners, and history while touting their Gaelic counterparts, thus permitting unity. It was not clear from this literature who could participate in this unity and how qualified it would be. This will be discussed in the next section, focusing on Gaelic religious discussions. * * * As has been shown, the Irish Catholic clergy—and much of the laity—were irreconcilably factionalized throughout the Restoration period, with the initial split precipitated by the proposed 1661 remonstrance which would have subordinated the pope’s jurisdiction to the king’s. Internal acts of vindictiveness by squabbling Catholics in positions of authority, combined with Ormond’s deliberate rehashing of the issue in order to weaken Catholic political activity, served to isolate his Catholic allies from enemies based on who subscribed to the remonstrance, and allowed him to persecute the identified foes, ensuring that Catholics could not even appeal to their common religious beliefs for unity well after the remonstrance failed.[57] But, as with the land settlement, polemicists attempted to surmount these obstacles through discourse by either denying the reality of conflict, or attempting to impose unity artificially through their tract. And once again, as with the land settlement, the context of the topic to be dealt with dictated the experiences used to found this unity. The land settlement was a direct result of recent conflict; thus, memories of the 1640’s were evoked and framed so as to suit the agenda proffered. The remonstrance debate took place within the context of centuries of constantly evolving Catholic theology. Accordingly, the time frame for memories evoked was significantly enlarged. Father Peter Walsh’s mammoth-sized 1673 tract History and Vindication of the Loyal Formulary, or Irish Remonstrance is the first text to be examined.[58] Walsh, a Franciscan monk, was one of the earliest defenders of the remonstrance when the conflicts first began in the 1660s; he notably convinced Ormond to let the clergy summon a synod to ratify it. Walsh’s advocacy of unity is more subtle than that of some other tracts analyzed in this essay. Its implicit, rather than explicit, nature likely derives from the nature of the work. It is intended to defend a coherent set of principles and the man who constructed it from accusations of treachery rather than accomplishing anything concrete through mass support. Remonstrant Catholicism was a significant theo-political departure from orthodox Irish Catholicism, and should be treated as a micro-identity within a larger Catholic body with its own ideological history to ground it. In this case, instead of attempting to forge an Irish Catholic identity out of the shards left behind by its bitter internal conflicts, this tract attempts to construct a wholly new paradigm parallel to the defunct alternatives. As such, unity is implicit insofar as the memories evoked attempt to justify subscription to a piece of reformatory legislation so large it can more or less be considered a separate sect of Catholicism. In short, this tract is purely ideological; unity was the express goal. It does frame the remonstrance as an end to dissolve the penal laws, but that is not the priority. The end of the penal laws is another justification for the benefits of the remonstrance. So how was a “Remonstrantist” identity fashioned? Walsh envisioned the remonstrance model as an acceptable, patriotic manifestation of Catholicism in an increasingly hostile Stuart state which would affirm monarchical loyalty while simultaneously foregoing certain unsavory papal principles in the process. Due to the increased crackdown on Catholicism in the early 1670s, “the old and fatal Controversy” was rehashed in public debate and called into question the loyalty of all Catholics.[59] Walsh explained his remonstrance as, “ a conscientious, Christian...and satisfactory profession of the duty which by all Laws... they...owe His Majesty against all pretences of the Pope to the contrary.”[60] Walsh does not blissfully ignore the existence of deep divisions which may prevent adherence to his vision; instead, he embraces them, writing that soon after the drafting of the Remonstrance it was, “impugned by sundry Ecclesiastics of the Roman Communion and chiefly by many of those Irish who had received most benefit by it.”[61] The reason behind this open admission of failure is twofold. One, it is easier to deny Catholic divisions when there is no public referendum on the issue by which one can concretely gauge the extent of conflict. The synod provided such a referendum and thus its failure was historically impossible to deny. The second reason is that this embarrassment substantiates one of his key arguments: the steady degradation and increasing corruption of Rome over the last several hundred years. Crafting the narrative of his history as a constant, descending slope from Pope Gregory VII to the present, Walsh paints a picture of a corrupt, tyrannical institution which generates political instability by presenting itself as a parallel power structure to secular hierarchies. He claims that over the past six hundred years, Rome has been operating under a set of principles which, “many Thousands of the most Learned, Zealous; Illegible word Godly Illegible word, Priests, and Doctors, as well as [the laity], who never approved... but always reproved, condemned, abhorred, detested; and protested against them both, as not only heretical, but tyrannical.[62] Chief amongst these he names the unchecked, absolute power of the papacy. He enumerates specific examples of malevolent papal authority intended to evoke contemporary politics in such a way as to galvanize support for his ecclesiastical program against Rome which may eliminate differences between Irish subjects. He writes: That by divine right...the Bishop of Rome is Universal Monarch and Governor of the World, even with.... spiritual and temporal authority over all Churches, Nations, Empires, Kingdoms, States, Principalities; and over all persons, Emperors, Kings, Princes... and People...and in all things and causes whatsoever, as well Temporal and Civil, as Ecclesiastical or Spiritual….That He is empowered with lawful Authority, not only to Excommunicate, but to deprive, depose, and dethrone (both sententially and effectually) all Princes, Kings, and Emperors; to translate their Royal Rights, and dispose of their Kingdoms to others, when and how He shall think fit…. That whoever kills any Prince deposed or excommunicated by Him, or by others deriving power from Him, kills not a lawful Prince, but an usurping Tyrant; a Tyrant at least by Title, if not by Administration too: and therefore cannot be said to murther the Anointed of God, or even to kill his own Prince.[63] Tyranny, usurpation, and regicide were all terms typically lobbed at the Cromwellian regime in Catholic discourse. By framing these crimes as inherent to the Catholic Church, and not to the inevitable outcome of radical Protestantism, Walsh accomplishes several discursive feats. One, he sets familiar terms of objective abjectness within a new context and places the blame on a supposedly friendly institution, therefore forcing Catholics to make a choice between loyalty to their beliefs and loyalty to Rome. Two, he implies that his prescription is the only feasible path for Catholics who wish to remain loyal, and thus forces a second introspective confrontation regarding royal or papal allegiance. Three, he maintains that said tendencies are inherent not in the religion but in the institution, implying that following his example will not change liturgy or customs but will simply purge ecclesiastical structures of institutionalized corruption. Four, he constructs a narrative that renders a, “System of Doctrines and Practises... contrary to those...manifestly recommended in the...Gospel of Christ... in the belief and life of the Christian Church universally for the first Ten Ages thereof,” entirely culpable for the, “misfortunes and miseries whatsoever of the Roman-Catholics in England, Ireland, Scotland.”[64] Thus, in Walsh’s world of untenable Church institutions which act as the source of all present Catholic suffering, the only viable way forward lies in subscribing to remonstrance principles. These “misfortunes and miseries” are embodied in the penal laws. Following his affirmation of Rome as the cause of all Catholic tribulation, he expands upon the statutes as a shared traumatic experience to encourage unity over the remonstrance. He affirms that: All Roman-Catholics... without any distinction of Sex, or Age...from the most illustrious Peer, to the most obscure Plebeian...lie under all the rigorous Sanctions, and all the severe Penalties of so many incapacitating... Laws...And your Predecessors, before you, have well nigh a whole Century of years been continually under the smart or apprehension of the severity of them.[65] Such an evaluation of the present state was not entirely true. Irish Catholics often circumvented the penal laws which were rarely enforced during the Restoration period. Yet it is important to remember that this tract was published in 1674, and likely written two years before, at which time the indulgence controversy in England had ushered in a period of harsher persecution and a crackdown on Irish Catholics.[66] Using the aberrational reality of the contemporary political climate, Walsh seizes the opportunity to affirm that such experiences were the normative standard. Yet instead of using shared experiences of oppression to galvanize resistance to the crown, he contextualizes them within his own narrative of uniquely Catholic culpability. Thus, he contends that only Catholics can change their own situation, making subscription to the remonstrance an absolute necessity for any Catholic who wished to ameliorate their present struggles. Within this discourse, that would be all of them. One final point that is necessary to fully illustrate Walsh’s utilisation of memory to craft a remonstrant identity is his claim that the blame for the seemingly never ending cycle of Irish rebellion can be entirely attributed to the pope’s corrosive influence. This counters the oft-articulated English and Protestant claim that the Irish, or Catholicism, for that matter, are inherently rebellious, and supplements his assertion that loyalty to the crown was not only of paramount importance for Irish Catholics, but is also possible under the proper ecclesiastical leadership. Here, Walsh describes a Catholic Ireland forced into repeated rebellion against the Crown by malevolent Roman overlords. And Pope Pius V, His Declaratory Sentence...against Queen Elizabeth. And the Bull or Breve of Gregory XIII...granting to all the Irish that would join and fight in the Rebellion of the FitzGeralds of Desmond against Queen Elizabeth, even the same plenary pardon and remission of all their sins, which is granted to those engaged in a Holy War against the Turk...And that other of Clement VIII...of the like tenor and direction to the Irish Nation in general, animating them to join unanimously in Tyrone's Rebellion against the self-same heretical Queen... And lastly...that Bull or Breve of Plenary Indulgence...given yet more lately to all the Roman-Catholics of Ireland, who had join'd in the Rebellion there begun in the year 1641...witness in the second place all the no less unchristian, than unhappy effects of these very Bulls, Breves, Judgments and Indulgences.[67] Significantly, Walsh fails to add that many Catholics in all conflicts listed refused to rebel, and thus makes this history, just like his other narratives, available to all Catholics. It also skirts around the complicated question of Catholic culpability and the extent to which they acted illegally in the 1640s by affirming that Rome was the reason for any malicious action. Thus, Walsh’s defense of the remonstrance should really be considered a formulation of a specific brand of Catholic identity, just like those of the other authors. He draws on a range of memories, constructing various histories intending to support his argument, and connects these histories to contemporary politics in such a way as to provide a direct catalyst for unification. Catholic nationhood is rarely mentioned explicitly; it functions in this tract not as a means to an end but instead as the ultimate objective. The end goal is a new brand of Catholicism, loyal to the king over Rome, freed from the shackles of forced insurrection, and instead fully integrated, and presumably welcomed, into the Stuart political nation. Yet not everyone approved of such a radical restructuring of Catholic theo-political doctrine. Peter Talbot, Archbishop of Dublin and self-appointed nightmare of remonstrants, produced a pamphlet the following year in 1674 titled The Friar Disciplind, Or, Animadversions On Friar Peter Walsh: His New Remonstrant Religion. It thoroughly excoriates Walsh and his perceived treason, spends an undue amount of time examining laws regarding public whipping and the extent to which they apply to Walsh.[68] Even when he is not indulging his fantasies of subjecting Walsh to corporal punishment, the rage in Talbot’s writing is still palpable. He accuses him, perhaps correctly, of intending to found a “new religion” and becoming, perhaps incorrectly, the “Pope of this new Remonstrant Church.”[69] He labels him a traitor, and maintains that by accusing, “all Bishops, and by consequence the Representative Roman Catholic Church, or...its supreme Pastor together with all the other Bishops of the said Communion, of holding and swearing the lawfulness of Treason,” he has become the “greatest Rebel...of the Irish nation.”[70] It is significant, of course, that the Irish nation means Catholicism, and we shall see that in this tract, as in his The Duty and Comfort of Suffering Subjects, Talbot constantly portrays Ireland as a categorically Catholic nation. This conflation of Ireland with Catholicism is intended to explain the reason why Walsh’s church failed in Ireland. Just as Walsh attempted to create a distinct, remonstrant Irish Catholic identity, so too does Talbot attempt to claim the existence of an opposing number which interprets history and shared Catholic experiences differently. The bulk of Talbot’s evidence for Walsh’s treachery lies in his accusations that Walsh’s remonstrance articulates nothing more than Anglican Protestantism. He argues that the remonstrance affirms that the, “King is the only supreme Governor of England, and of all other his Dominions, as well in all Spiritual or Ecclesiastical things or causes, as temporal,” religious authority is duly denied to the pope, and thus the King is given, “all the spiritual power and authority in his own Dominions.”[71] He draws an immediate parallel with Protestantism, noting how, If you will read the Statutes 1. Eliz. 1. & 8. Eliz 1. You will find that the Kings of England’s supremacy, is so spiritual and sublime, that there needs no changing the signification of the word spiritual into temporal, and that a King of England (if he should think fit) may, according to the principles of the Protestant religion, established by the lawes of the land, giue power by letters patents, to any of his lay subjects to consecrate Bishops and Priests… [72] Thus, in practice, Walsh is, “the greatest Traitor and Rebel that breathes,” to the Catholic faith, stemming from his attempt to create a separate Protestant Church to make himself its pope rather than out of a genuine reforming impulse.[73] However, Talbot does not limit the scope of his argument to legal queries over the separation of temporal and ecclesiastical power. He uses the notion of collective memory and a constructed Catholic identity to prove that Walsh is truly operating contrary to the interests of all Irish Catholics. His selection is a curious one: the martyrdom of Thomas Becket, the Archbishop of Canterbury who was murdered on King Henry II’s (unintentional) orders in 1170. The reasons for this choice are twofold. First, Talbot needs to formulate a narrative honoring Rome for the same period of time that Walsh did to provide a viable opposition model. Thus, he claims, “it’s much better….to justify…. doctrine of...the whole Roman Catholic Church, ever since S. Thomas his Martyrdom, then the fancies of a dull ignorant Friar.”[74] Walsh, however, objects against it the Martyrdom and Miracles of S. Thomas of Canterbury; it being evident out of all Histories, both sacred and profane; that S. Thomas suffered, was canonised and declared a Martyr, for defending the immunities of the Church, and particularly that of Churchmen from the coercive supreme power of secular Courts.[75] Becket’s murder is the founding moment for Irish Catholics because of its contemporary relevance; he died defending the ecclesiastical court’s integrity and independence from a crown increasingly attempting to encroach on spiritual authority. Yet there is something else implicit in such a choice, something far more salient. By claiming that Walsh, who has become a Protestant, has succeeded in bastardizing the memory of saint Thomas Becket, Talbot further retrenches the Irish Catholic and English Protestant worldview. Though Henry II was a Catholic, he was the English king who conquered Ireland, and as we have seen, Talbot’s criteria for Protestantism is predicated on how one perceives the divisions (or lack thereof) between temporal and spiritual power as vested in the monarch. Thus, Talbot ahistorically assigns to Henry the faith of Protestantism to define the Irish Catholics in opposition to the English monarch who, like those of the Restoration, desired for himself ecclesiastical supremacy. Having described a common experience to unite all Catholics, Talbot thus claims that a pan-Catholic identity already exists, with a rich history of papal loyalty and devoted to the separation of secular and ecclesiastical authority dating back to the martyrdom of Becket. He again claims that as Walsh believes, “that the oath of supremacy may be taken with a good conscience by Roman Catholics,” the entire, “Roman Catholic Church belives, and tells vs the contrary,” thus Walsh has, “no reason to be angry with Catholics, if they do not rely upon [his] word in any point that concerns their conscience or religion.”[76] By describing Walsh as a Protestant, Talbot attempts to unite all Catholics against him and avoid afracturing Catholic unity; Walsh is no Catholic. Yet unlike Walsh, Talbot is not attempting to create unity. He is attempting, like the author of A Narrative or himself in The Duty and Comfort of Suffering Subjects, to justify its existence. As such, he isolates Peter Walsh as a lone figure in a defunct movement attempting to combat centuries of Catholicism. By what authority, he asks, may Catholics subscribe to the Remonstrance? None but your own authority; nothing but your saying, that the Roman Catholic Church hath err'd rashly and obstinately for these 600. last years, because it admitted not a Spiritual Supremacy in temporal Soueueraigns. Really Mr. Walsh, I do not believe your sole authority is a sufficient argument to prove the Church hath erred. To proue so rash an assertion you would fain make us mistrust the testimonies of holy and learned Authors of the Church History, as Baronius, Bellarmin, and others…[77] Talbot invokes the concept of nationhood to counteract Walsh’s ability to create a separatist Church. He even explicitly refers to it; he asks whether Walsh would “disgrace [his] own nation” by “promoting protestancy... and dividing...Catholics by his Remonstrance.”[78] Thus his crime extends beyond religious heresy into the secular sort; it also consists of attempting to divide his version of the Catholic nation. This division is a conditional one, however, in the subjunctive tense. It does not exist, of course; it is only the foolish attempt of a deranged traitor. Yet it is not enough to deny Walsh the privilege of support. To claim a united nation in opposition to Walsh, Talbot needs to deny his blatant persecutions of remonstrants. As we have seen, Talbot, in his position as Archbishop of Dublin, gleefully tormented the few remonstrant clergy remaining in his diocese. Yet he instead baldly lies about it: “I neuer persecuted, him nor any of his...Friars Remonstrants, in whose behalf he petitioned.”[79] Talbot, then, uses memory to controvert and invalidate Walsh’s construction of identity and instead articulates an iteration of Catholic identity that he claims as not only a viable alternative, but perhaps more importantly, already the reality. *** How did the Gaels perceive the remonstrance? Clues can be discerned from poetry. As we examined in the last section, the land settlement produced a wealth of tracts chronicling a collective set of experiences for all of Ireland; yet the question of who is included is left rather ambiguous. That question will be answered in this section. In his 1670 poem “O God of the Universe,” Ó Bruadair laments, Dark is the light of the sun and the heavenly elements, And rent is the covering surface of earth's grassy countenance, I deem it no wonder that they should then wholly extinguished be, Seeing that clerics transgressing their oaths into treason fall.[80] The decidedly critical outlook of the remonstrants – or rather, “The corrupt and un-Irish conceits of this renegade forger-clique” – finds a scapegoat in Peter Walsh.[81] In his 1670 tract “‘Tis Sad for Erin’s Fenialí Bands,” Ó Bruadair condemns Walsh as “guilty of the wounds inflicted on the land of Fál, Whicli lies to-day beneath his hand all powerless to act or stir.”[82] Yet such criticisms raise important questions. If the remonstrant clergy and Walsh are traitors, who are they betraying? The Catholic religion, or Ireland itself? Either way, the implications are massive. If Walsh is betraying Catholicism, then Ó Bruadair is claiming the existence of another vision of Irish Catholicism more in line with Talbot’s thinking. If the answer is Ireland, then by consequence all Catholics must be counted as Irish. In examining Ó Bruadair’s treatment of Catholicism as it relates to his already-discussed perception of a Gaelic Ireland, a mostly coherent, yet at times contradictory, vision of who Ó Bruadair considers Irish emerges. His 1680 work “Those Who Once Knewest The Law” sheds some light on these queries. The poem is written in response to the news that one Master Verling, a lower Gaelic nobleman, converted to Protestantism for admittance to Trinity College, Dublin.[83] The poet writes: Those who once knewest the law of the flock that cleaved closest to Christ, And who therefore have let themselves be by the cruellest slavery oppressed, Reflect in thy mind on thyself and observe how accursed the deed To yield to the heart's base desires and sell heaven for a short spell of life.[84] Verling’s treachery is not to Gaeldom but to Catholicism as a whole, and the oppressed peoples mentioned are all Catholics, not just ones of a certain ethnic persuasion. These few short lines reveal a startling conclusion: what Joseph Leerssen mistakenly considers an exclusive, Gaelic identity developing in the Restoration period should really be understood as an Irish Catholic identity.[85] Yet still, this issue is complicated by the fact that the culture and history of Ireland Ó Bruadair espouses is very much a Gaelic one. It is thus necessary to examine his perception of Old English eligibility for this collective memory. Paradoxically, in his rather exclusionary language which separate Gauls from Gaels, he lumps Catholics of all persuasions into a de-ethnicized confessional identity. As reverend Mac Erlean notes, Gauls is a complicated term. It may designate Gauls, Vikings, Normans, or English. Until the seventeenth century, Gauls were characterized and distinguished by different physically descriptive terms such as “fair,” or “bright.” Yet, as the social upheaval of the seventeenth century introduced various new settlers into Ireland, words such as “old” or “new” began to be used, and physical descriptions such as “fair” or “black” became transmuted so as to solely convey moral judgements.[86] Thus “Gall” by Ó Bruadair’s time was a decidedly ambiguous term. As such, we find various pieces praising them, even though they are not Gaels: Many daring soldiers, many swords and volumes, Many masts and currachs, Did that fleet's crew bring across the sea from Britain, Everlasting radiance. The diploma of these Galls is Christ's religion And their prince's patent, The prescription of five hundred years' possession. 'Tis no living falsehood.[87] Thus, the Anglo-Irish conquerors of the twelfth century are distinguished from the Cromwellians of the 1640’s because of their religion. Though their religion does not make them “Gaels,” it does establish a bond with them, symbolized in this particular poem by the marriage between the “Choicest wheat of Erin's Gaels and Galls.”[88] Catholic Gauls are included in the land of Erin, and as we have seen in the previous section, are also included in the land’s Gaelic past which was founded for this united island. The most important Gaelic-language work in forging a discursive Catholic union between Gaels and Gauls is Ó Bruadair’s poem “Love of Sages,” written in praise of John Keating, the Old English Chief Justice of Ireland who acquitted the Gaelic noblemen accused of complicity in the supposed 1682 “Popish Plot.”[89] In the poem, Ó Bruadair identifies two types of Galls. One includes the, Royal champions for the king’s cause murdered Made these sons of malediction proud; Soon the frauds of sullen, hateful scoundrels Flourished fierce without a spark of shame.[90] This classification refers to the Protestant English officials who poisoned the king’s ear with fantasies of Catholic rebellion. The other group – or as Ó Bruadair writes, it, “Galls like these” – including Keating, “shield of our protection/Against the wicked tramp’s perfidious snares.”[91] This second category comprises the Catholic Galls of Ireland, or the Anglo-Normans, to whom the Gaels “owe allegiance.”[92] To further complicate this conception, Ó Bruadair makes several bold statements in his praise of Keating which seem to contradict the notion that these Gauls are even foreigners. First, he lauds the “the chivalrous blood of that generous true Irish Gall,” a seemingly blatant linguistic paradox.[93] Several lines later, he similarly praises him for bringing “comfort to your oppressed Countrymen.”[94] Thus, the distinction between Gael and Gall persists, yet the Galls seem to count as Irish. How so? Catholicism, of course, unites them. The Irish nation conceived by Ó Bruadair and the other Gaelic poets reviewed in the Restoration period is one not of Gaels, as Joseph Leerssen maintains, but of Catholics. As we have seen, Gaelic language, culture, and history were touted with characteristic fervor in these thirty volatile years. Yet these were defined not in opposition to the Old English, but to the English Protestant invaders. The memories that were drawn upon were indeed Gaelic, yet they were memories to which all Catholics could subscribe; thus his praising of Keating for appreciating the Gaels for who they were.[95] In uniting them in the present as one Catholic force, Ó Bruadair further implies that they also should subscribe to this history, as all of Ireland increasingly became united as one single geographic, religious entity. Thus, just as the Old English pamphleteers attempted to resolve economic and ecclesiastical animosities by professing some sort of unified Irish Catholic identity (implicitly surmounting ethnic differences), the Gaelic poets, in their quest to comprehend the transformed society around them, smoothed over ethnic differences and the complexities of recent experience to articulate a coherent version of Ireland. This Ireland which was Gaelic in culture, language, and history, was now also available to Catholic Gauls as a result of supposedly shared recent experiences. Like those of the Old English writers, such affirmations had little grounding in reality. Yet their existence is vital to understanding how Irish nationalism, in the eighteenth century, took place within a context of “cultural-political osmosis” wherein even the English-speaking, Protestant population adhered to this vision of Ireland in direct opposition to England. In conclusion, an Irish Catholic nation did form in the Restoration period, insofar as it appeared in discourse as an appealing alternative to confusing and oftentimes depressing social realities. It transcended ethnic, economic, and theological bounds, yet never appeared in the same form more than once. Irish Catholic identity can only really be described as a rhetorical chameleon, used constantly – in many more works than just the above discussed – yet changing to adapt to the circumstances of the propaganda. Gaelic poetry and the remonstrance discourse, more or less devoid of ulterior motives other than asserting the continued role of the poet in society and formulating a remonstrant versus anti-remonstrant identity, respectively, came the closest to articulating a clear, ideologically-founded Catholic nation. Yet all of the tracts examined, and several more which I have not had the space to assess here, have one common theme: the discourse is massively disconnected from reality. Any development of Irish Catholic identity in this period was purely rhetorical and was not reflected by any actual events. This is not to say these tracts have no importance in posterity. They certainly do. Nationhood as defined by the parameters set out in this particular essay, is inherently both rhetorical and practical; it must originate in articulations of experience and a call for unity before this actually happens. Rhetorical unity is necessarily anticipatory of actual nationhood; Restoration articulations of nationhood may be considered, with the benefit of historical hindsight, to have anticipated what Tom Garvin deems, “Irish separatist nationalism as a popular political creed,” that originated in the eighteenth century.[96] The seventeenth century provided the rhetorical framework and memorial precedent; the eighteenth century, with its mass persecutions of all Catholics and economic and political imperialization of Ireland, provided the immediate impetus to subscribe to the memory.[97] We should be careful not to rely too heavily on hindsight, however, and should focus equally on the immediate impact of the discourse within the context of the Restoration era. The literature of the 1660s, 70s, and 80s had the immediate effect of enforcing the image of Ireland as a Catholic nation, and in describing Ireland in opposition to English Protestantism, it became an inherently, if unwittingly, subversive entity. This discourse also offers one more important revelation, alluded to earlier in this essay: given that Irish unity was employed in such a myriad of tracts from this period, one may assume it was an effective rhetorical tool and appealed to broad swaths of the Catholic population. Thus, though they could not agree on how they should unite, it appears that many Irish Catholics did agree that indeed they should. Given the Protestant ascendancy, increasing imperialization, and marginalization of Catholics in political life, the fact that this was the case is not surprising. Yet it is also not surprising that unity did not happen: the brunt of this oppression was not felt by the entire population. The Stuarts did not perfect the art of confessional, economic, and political persecution in Catholic Ireland. The Hanovers, however, did. Endnotes [1] Nicholas French, The bleeding Iphigenia or An excellent preface of a work unfinished, published by the authors frind, [sic] with the reasons of publishing it.] 1675. 2, 3, 6 [2] Tim Harris, “Restoration Ireland: Themes and Problems” in Restoration Ireland: Always Settling, Never Settled, edited by Coleman A. Dennehy (Hampshire, England, 2008). 13 [3] Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). 35-8 [4] Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). 11-14 [5] Tim Harris, “Restoration Ireland: Themes and Problems” in Restoration Ireland: Always Settling, Never Settled, edited by Coleman A. Dennehy (Hampshire, England, 2008). 13 [6] Tim Harris, “Restoration Ireland: Themes and Problems” in Restoration Ireland: Always Settling, Never Settled, edited by Coleman A. Dennehy (Hampshire, England, 2008). 10 [7] Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). 87 [8] Ann Creighton, “Grace and Favour: The Cabal Ministry and Irish Catholic Politics, 1667-1673” in Restoration Ireland: Always Settling, Never Settled, edited by Coleman A. Dennehy (Hampshire, England, 2008). 152 [9] Raymond Gillespie, Seventeenth-Century Ireland: Making Ireland Modern (Gill and MacMillan: Dublin, 2006). 235 [10] Raymond Gillespie, Seventeenth-Century Ireland: Making Ireland Modern (Gill and MacMillan: Dublin, 2006). 237-8; Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). 98 [11] Peter Walsh, P. W's Reply to the Person of Quality's Answer: Dedicated to His Grace, the Duke of Ormond. Paris: [s.n.], 1682. 88-80 [12] Raymond Gillespie, Seventeenth-Century Ireland: Making Ireland Modern (Gill and MacMillan: Dublin, 2006). 238-9 [13] Raymond Gillespie, Seventeenth-Century Ireland: Making Ireland Modern (Gill and MacMillan: Dublin, 2006). 239 [14] Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). 96-98; Raymond Gillespie, Seventeenth-Century Ireland: Making Ireland Modern (Gill and MacMillan: Dublin, 2006). 239 [15] Ann Creighton, “Grace and Favour: The Cabal Ministry and Irish Catholic Politics, 1667-1673” in Restoration Ireland: Always Settling, Never Settled, edited by Coleman A. Dennehy (Hampshire, England, 2008). 144-6 [16] Ernest Renan, What is a Nation? (Lecture at Sorbonne, 11 March 1882 in Discours et Conferences, Paris, Caiman-Levy, 1887). 277-310 [17] Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). 87 [18] Anonymous, A Narrative of the Settlement and Sale of Ireland: Whereby the Just English Adventurer Is Much Prejudiced, the Antient Proprietor Destroyed, and Publick Faith Violated : to the Great Discredit of the English Church, and Government, (if Not Re-Called and Made Void) As Being Against the Principles of Christianity, and True Protestancy. Lovain: [s.n.], 1668 [19] Anonymous, A Narrative of the Settlement and Sale of Ireland, 1 [20] Anonymous, A Narrative of the Settlement and Sale of Ireland, 1 [21] Anonymous, A Narrative of the Settlement and Sale of Ireland, 1-2 [22] Anonymous, A Narrative of the Settlement and Sale of Ireland, 7, [23] Anonymous, A Narrative of the Settlement and Sale of Ireland, 12 [24] Anonymous, A Narrative of the Settlement and Sale of Ireland, 11-12 [25] Anonymous, A Narrative of the Settlement and Sale of Ireland, 17 [26] Anonymous, A Narrative of the Settlement and Sale of Ireland, 5-6 [27] Anonymous, A Narrative of the Settlement and Sale of Ireland, 8-9 [28] Anonymous, A Narrative of the Settlement and Sale of Ireland, 10 [29] Anonymous, A Narrative of the Settlement and Sale of Ireland, 16 [30] Anonymous, A Narrative of the Settlement and Sale of Ireland, 25 [31] Anonymous, A Narrative of the Settlement and Sale of Ireland, 25 [32] Talbot, Peter, The Duty and Comfort of Suffering Subjects. Represented by Peter Talbot In a Letter to the Roman-Catholiks of Ireland, Particulary Those of the City and Diocese of Dublin. [Douai: s.n., 1674.] [33] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 1 [34] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 1 [35] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 1-2 [36] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 7-8 [37] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 10 [38] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 2, 13 [39] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 13 [40] Talbot, Peter, The Duty and Comfort of Suffering Subjects. 9 [41] Anonymous, A Narrative of the Settlement and Sale of Ireland, 18 [42] Talbot, Peter, The Duty and Comfort of Suffering Subiects. 15 [43] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 198 [44] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 220; Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part I, CONTAINING POEMS DOWN TO THE YEAR 1666, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 206 [45] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part I, CONTAINING POEMS DOWN TO THE YEAR 1666, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 207 [46] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 33 [47] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part I, CONTAINING POEMS DOWN TO THE YEAR 1666, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 197, 203; Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 21, 39 [48] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 204 [49] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 62-3 [50] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 205 [51] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 220 [52] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 251 [53] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 224-5 [54] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 227 [55] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 225 [56] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 248-252 [57] Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). 96 [58] Peter Walsh, The History & Vindication of the Loyal Formulary, Or Irish Remonstrance ... Received by His Majesty Anno 1661 ..: In Several Treatises : with a True Account and Full Discussion of the Delusory Irish Remonstrance and Other Papers Framed and Insisted On by the National Congregation At Dublin, Anno 1666, and Presented to ... the Duke of Ormond, but Rejected by His Grace : to Which Are Added Three Appendixes, Whereof the Last Contains the Marquess of Ormond ... Letter of the Second of December, 1650 : In Answer to Both the Declaration and Excommunication of the Bishops, &c. At Jamestown. (London, 1673). [59] Peter Walsh, The History & Vindication of the Loyal Formulary. ii [60] Peter Walsh, The History & Vindication of the Loyal Formulary. ii [61] Peter Walsh, The History & Vindication of the Loyal Formulary. ii [62] Peter Walsh, The History & Vindication of the Loyal Formulary. xiii [63] Peter Walsh, The History & Vindication of the Loyal Formulary. xvii-xviii [64] Peter Walsh, The History & Vindication of the Loyal Formulary. xvi [65] Peter Walsh, The History & Vindication of the Loyal Formulary. iv-v [66] Raymond Gillespie, Seventeenth-Century Ireland: Making Ireland Modern (Gill and MacMillan: Dublin, 2006). 265 [67] Peter Walsh, The History & Vindication of the Loyal Formulary. xi-xii [68] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh: His New Remonstrant Religion : the Articles Whereof Are to Be Seen In the Following Page : Taken Out of His History and Vindication of the Loyal Formulary .... Printed at Gant: [s.n.], 1674. 9 [69] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 11, 13 [70] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 10, 57 [71] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 28 [72] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 28 [73] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 67 [74] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 17 [75] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh.13 [76] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 40 [77] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 41 [78] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 44 [79] Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh. 78 [80] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 4 [81] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 7 [82] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 11 [83] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 262 [84] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 263 [85] Joseph T. Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). 252 [86] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 50 [87] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913).83 [88] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913).83 [89] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913).264 [90] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913).271 [91] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913).277, 281 [92] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 283 [93] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 285 [94] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913).287 [95] Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). 283 [96] Tom Garvin, The Evolution of Irish Nationalist Politics (New York), 14 [97] Tim Harris, “Ireland,” from his Revolution: The Great Crisis of the British Monarchy, 1685-1720 (2006), 500-12 References Works Cited: Anonymous, A Narrative of the Settlement and Sale of Ireland: Whereby the Just English Adventurer Is Much Prejudiced, the Antient Proprietor Destroyed, and Publick Faith Violated : to the Great Discredit of the English Church, and Government, (if Not Re-Called and Made Void) As Being Against the Principles of Christianity, and True Protestancy. Lovain: [s.n.], 1668 Ann Creighton, “Grace and Favour: The Cabal Ministry and Irish Catholic Politics, 1667-1673” in Restoration Ireland: Always Settling, Never Settled, edited by Coleman A. Dennehy (Hampshire, England, 2008). 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Leerssen, Mere Irish and Fíor-Ghael: Studies in the Idea of Irish Nationality, its Development and Literary Expression prior to the Nineteenth Century (Amsterdam and Philadelphia: John Benjamins, 1986). Danielle McCormack, The Stuart Restoration and the English in Ireland (Woodbridge: Boydell Press, 2016). Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part I, CONTAINING POEMS DOWN TO THE YEAR 1666, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913) Daibhi Ó Bruadair, Poems of Daibhi Ó Bruadair, Part II, CONTAINING POEMS FROM THE YEAE 1667 TILL 1682, Edited with Introduction, Translation, and Notes by REV. JOHN C. MAC ERLEAN, S.J. (London, 1913). Ernest Renan, What is a Nation? (Lecture at Sorbonne, 11 March 1882 in Discours et Conferences, Paris, Caiman-Levy, 1887). 277-310 Peter Talbot, The Duty and Comfort of Suffering Subjects. Represented by Peter Talbot In a Letter to the Roman-Catholiks of Ireland, Particulary Those of the City and Diocese of Dublin. [Douai: s.n., 1674. Peter Talbot, The Friar Disciplind, Or, Animadversions On Friar Peter Walsh: His New Remonstrant Religion : the Articles Whereof Are to Be Seen In the Following Page : Taken Out of His History and Vindication of the Loyal Formulary .... Printed at Gant: [s.n.], 1674. Peter Walsh, P. W's Reply to the Person of Quality's Answer: Dedicated to His Grace, the Duke of Ormond. Paris: [s.n.], 1682. Peter Walsh, The History & Vindication of the Loyal Formulary, Or Irish Remonstrance ... Received by His Majesty Anno 1661 ..: In Several Treatises : with a True Account and Full Discussion of the Delusory Irish Remonstrance and Other Papers Framed and Insisted On by the National Congregation At Dublin, Anno 1666, and Presented to ... the Duke of Ormond, but Rejected by His Grace : to Which Are Added Three Appendixes, Whereof the Last Contains the Marquess of Ormond ... Letter of the Second of December, 1650 : In Answer to Both the Declaration and Excommunication of the Bishops, &c. At Jamestown. (London, 1673). Works Consulted: Jim Smyth, “Republicanism before the United Irishmen: The case of Dr. Charles Lucas” in Political Discourse in Seventeenth- and Eighteenth-century Ireland edited by D. George Boyce, Robert Eccleshall, and Vincent Geoghegan (2001). 240-253 Tyrconnel, Richard Talbot, Earl of, 1630-1691: Tyrconnel's speech to his Privy Council made upon the (expected) landing of the late King James in Ireland : with remarks upon it. 1680 French, Nicholas, The Vnkinde Desertor of Loyall Men and True Frinds [sic]. [Paris]: Superiorum permissu, 1676. Jason McHugh, “Catholic Clerical Responses to the Restoration: The Case of Nicholas French” in Restoration Ireland: Always Settling, Never Settled (Hampshire, England, 2008). 108-120 Michael Perceval-Maxwell, “The Irish Restoration Land Settlement and its Historians” in Restoration Ireland: Always Settling, Never Settled (Hampshire, England, 2008). 19-29 A Vindication of the Present Government of Ireland, under his Excellency Richard Earl of Tirconnell (1688)

Author Name < Back Shoring Against Our Ruin: An Investigation of Profound Boredom in Our Return to Normal Life Virginia Moscetti Returning to campus after what felt like a lifetime of virtual schooling, quarantining, and all the other cheerful aspects of living and studying during the height of the COVID-19 pandemic, I was thrilled to finally return to a normal college experience. And yet, it has been anything but normal. Besides the fact that the pandemic continues to drag on indefinitely, bringing with it certain indispensable COVID prevention strategies, like mask-wearing and bi-weekly testing, there is something more obstructing my return to the normal, pre-pandemic college experience I had so eagerly anticipated. My old routines now feel empty, and my previous passions and interests have fallen flat. I trudge about daily life listlessly, keeping up with my academic and extracurricular commitments simply because I don’t want to royally screw up the rest of my life. In short, I am bored, and I’m not the only person to feel this way. According to a recent article by Times Magazine, approximately 12 million Americans quit their jobs last summer. For Americans between the ages of 20-34, 14 million have either resigned or neglected to join the traditional workforce. While some resigned in pursuit of higher wages and better working conditions, a significant portion of Americans sought non-traditional jobs or simply reveled in “funemployment”. This phenomenon, informally termed “The Great Resignation,” is deeply connected to the pandemic and our recent quasi-return to normal. During the initial stages of the pandemic, everything came to a standstill. Going to work, walking to class, living in a dorm, and frequenting friends and family was no longer possible. Daily routines, as a result, altered substantially. We became accustomed to working, studying, and interacting through screens from the relative comfort of our homes. We developed hobbies to pass the time. Our relationships changed, for the better and also for the worse. Ultimately, everyone desperately looked toward a final return to normal, but with the semi-normal return that came, we were strikingly confronted with how much had changed within the world and within ourselves. With so much change, a return to pre-pandemic existence seems impossible. What one did then is not the same as what one does now, and, by extension, our possibilities for individual meaning-making in the world are not the same as our previous ones. Unable to authentically recreate past forms of meaningful doing and acting in the world as they used to exist, the attempt to do so in our quasi-post-COVID life becomes pervaded with a sense of meaninglessness. Going to work a specific job because that is what one used to do is no longer a sufficient justification for working it now, especially since, with so many people quitting their jobs or taking untraditional work trajectories, the structure of a working life has substantially, perhaps even normatively, changed. Unless that work continues to generate meaningful fulfillment, reenacting old ways of performing one’s daily life can produce a diffuse sense of indifference or boredom. In The Fundamental Concepts of Metaphysics , 20th century philosopher Martin Heidegger describes the boredom resulting from a confrontation with a sense of meaninglessness in our actions and routines as the phenomenon of “profound boredom.” Heidegger argues that in profound boredom, we are exposed to the structures of our existence and, through that exposure, can newly discover meaningful ways to project ourselves into the world. In this paper, I will investigate the extent to which Heidegger’s profound boredom is reflective of the form of boredom playing out in contemporary society and how his solution might offer a productive remedy. In order to do this, I will reference T.S Eliot’s “The Waste Land,” a poem which copes with widespread disillusionment in modern society following the devastation of World War I and the increased technological advancement in the Second Industrial Revolution. Examining both Eliot’s and Heidegger’s representations of boredom, I will demonstrate (1) how boredom can take on existential proportions, (2) how globally disruptive experiences can instantiate this boredom, and (3) how this boredom may be resolved by acknowledging our own facticity and our own freedom to choose how we want to act within our world by meaningfully repeating past possibilities of doing and acting. Comportment, Dasein, and The One According to Heidegger, all individuals have a particular style or way of interacting with the features of the world. This style, which Heidegger terms comportment, is structured by an individual’s goals and projects. In short, what they find meaningful. For instance, entertaining the ultimate goal of becoming a philosopher, I am oriented and disposed towards the world accordingly: I choose to undertake an undergraduate major in philosophy, I dedicate myself to my philosophy courses, and I choose to attend graduate school all for the sake of this goal. As I do so, I develop a particular manner of comporting myself toward (i.e., a particular way of acting in) the world. This comportment, while it pertains uniquely to each individual, is superimposed upon the individual’s “Dasein”. According to Heidegger, human beings are a particular type of entity which he terms “Dasein” – it can be loosely translated from German to mean “being-there”. Dasein interacts with the features of the world to advance its own particular goals and projects which illuminate a certain “style” or way in which Dasein approaches the world. As Heidegger describes, Dasein performs its actions and activities (i.e., its being) according to this particular style or comportment. Reciprocally, Dasein’s actions and activities reflect the comportment through which it approaches them. For example, if I entertain the ultimate goal of becoming a philosopher, I comport myself and am disposed toward the world accordingly: I choose to major in philosophy, I dedicate myself to my philosophy courses, and I choose to attend graduate school all for the sake of this goal. In pursuing certain projects and goals, I develop a particular manner of comporting myself toward (i.e., a particular way of acting in) the world. Additionally, the way that I act and do things (my comportment) both reflects and constitutes my understanding of myself. As I perform the actions that reflect the goal of becoming a philosopher, they also inform and constitute how I understand myself to “be” or act within the world as this particular individual which finds such and such projects meaningful. Thus, by attending my philosophy classes, I reinforce my understanding of myself as someone who loves philosophy and aims to become a philosopher. Of course, I can do things that would seemingly be “out of character” or at odds with my regular comportment, but in designating such an instance as “out of character,” I directly make reference to a contradiction between how I understand myself to act and a particular action or instance. Thus, to use Heideggerian terminology, as Dasein performs its being according to a particular comportment, it relates that comportment to the understanding of itself as itself, so that the mode in which it enacts its being is synchronized with how it understands itself to be. While, being in the world according to a particular comportment, I do, act, and choose things that reflect a particular understanding of myself, what I do, how I act, and what I choose is invariably subject to what is available to me within my world. Just as I could not build a house without the tools to do so, I could not pursue a career in philosophy if philosophy were not an established (or at least an existent) field of study. Accordingly, Dasein’s involvement in the world is structured by the features and beings present and accessible to it within that world. Dasein’s being in the world is also a ‘being-with’ others. Being-with becomes especially apparent in the manners in which Dasein interacts with objects and other features of the world through historical and culturally contingent social norms. For Heidegger, these conventions are exemplified through “what one does.” For example, one shakes hands when meeting a new person, one places one’s napkin on one’s lap at the table prior to beginning a meal, one drinks with a glass and eats with forks, knives, and spoons. While “one” does not designate any one particular individual, it designates an abstract collection of us (in which we are all included) that Heidegger terms the “They”. Insofar as I do as “one” does, I participate in the “They”, so that my actions reflect the larger social conventions of my community rather than what is meaningful and particular to me. By adopting these social conventions and rooting the “meaningfulness” of my actions within a contingent social order, I simultaneously flee the responsibility and accountability for my actions (as things which “I” rather than “They” elect to pursue) and relinquish my inherent freedom to pursue actions that are meaningful to me. Still, doing and knowing what one does fundamentally configures my “everyday” being-in-the-world (i.e., the way I act and relate to the world). As Mark Wrathall writes in How To Read Heidegger , “in the first instance and most of the time, we relate to others in the mode of ‘the one,’ which means that we understand ourselves in terms of what one says about the way one should live, that is, in terms of what one ordinarily does in situations that confront us”. Therefore, Dasein’s everyday existence (i.e., the typical or common way in which it is, both in terms of what activities it enacts and how) is, to some extent, immediately structured by what one does. For example, I go to the grocery store or the farmers market because that is what one does to purchase food in my community. At the grocery store, I acquire ham and other meats at the deli because that is what one does. My decision to go to the grocery store and my entire experience within that grocery store is organized by what one does. And this same structure applies to most of Dasein’s other everyday activities. Because Dasein’s “everydayness” is, to some extent, fundamentally structured by what one does, Dasein is never entirely inextricable from the “They.” Still, it is important to reiterate that “what one does” is not intrinsically meaningful in and of itself but a way of acting that reflects our socio-historically contingent norms and conventions. During our pre-pandemic existence, departing to work or school, completing errands outside of the home, and visiting and engaging with others in physically close proximity was simply what one did and, as such, characterized our “everyday” existence. In enacting these doings and activities of “what one did,” we became oriented toward and learned to relate to the world in terms of the pre-pandemic “one.” Consequently, the pre-pandemic understanding of what one did formed part of our self-understanding, or understanding of our everyday they-selves which, in turn, undergirded those particular selves we claimed to be or exist as. For example, a college student understands his everyday they-“self” as a college student (at least partially) in terms of what one does in college. In the pre-pandemic world, this meant attending classes within a classroom, studying in a library alone or amongst friends, securing internships, discovering a potential career path, perhaps occasionally partying. As he performs these things, he relates them back to his self-understanding as a “college student.” During the seemingly interminable months of quarantine, daily life underwent a fundamental transformation. Everyone, to some extent, conducted their social, academic, and work lives on various virtual platforms. Thus, what one did and how one worked altered drastically during quarantine. For our anonymous college student, virtual schooling and socializing became integrated into his everyday existence, and thus formed part of his everyday “self,” or how he acted and understood himself to be as a college student. Now, emerging out of quarantine with our quarantine beards and unshaven legs, we are tasked with what feels like the Herculean feat of “returning-to-normal” pre-pandemic life and what one did in that life. And yet, because we established a new normal and thus a new definition of what one does during quarantine, that “return” implies reproducing a performance or rehearsal of oneness that is, after such significant change since the onset of the pandemic, no longer applicable or even existent. As a result, the prevailing expectation of a return to normalcy confronts us with a conflict of “oneness” in which what one did and how one understood oneself to be as a college student, as a software engineer, doctor, or librarian is no longer what one does or how one understands oneself to be as such in our current world. In other words, the pre-pandemic “one” no longer determines our performance of “oneness.” However, here we are confronted with another problem: what does one do now? And by extension, how does one even understand oneself to be in the world? Is our college student still a college student within the pre-pandemic social definition and understanding of the term after spending close to a year in a virtual social and academic environment? Does he even understand himself to be the same college student that he once was before the pandemic? If not, is he left without anything to refer to in order to devise meaning and intelligibility from the strange, anomalous current life-experiences he must undergo? And, what if his goals and projects changed during quarantine? Must he now rehearse, along with all of us, what one did in the pre-pandemic life with those same goals and projects despite their inability to cohere with his current way of relating to the world? What are the implications of this rehearsal of pre-pandemic one-ness for Dasein who, after so much time understanding itself, relating to the world, and, as it were, devising meaning of its existence through the social conventions and modes of being associated with quarantine, must now adopt a performance of one-ness that is no longer meaningful to it; that no longer reflects how it understands itself to “be?” Published in 1922, six years after World War I and approximately fifty years after the onset of the Second Industrial Revolution, T.S Eliot’s modernist poem “The Waste Land” appears to cope directly with the implications of meaninglessly rehearsing “what one did.” In Part II of the poem, A Game of Chess , a man and woman are having a disjointed conversation. The woman anxiously exclaims “What shall we do? What shall we ever do?” to which the man responds cryptically: “ The hot water at ten. And if it rains, a closed car at four. And we shall play a game of chess, Pressing lidless eyes and waiting for a knock upon the door.” In asking what they will do, the woman expresses an existential concern for meaningful, fulfilling “doing” or action. The man, however, suggests that no such doing is possible and that they are instead condemned to a life of listlessly repeating old routines until death or some other existential “knock upon the door” delivers them from it. The poem famously purports to diagnose the catastrophic ills and pains of modern society in the post-war period. With the unprecedented violence of World War I and the increased mechanization of modern society following the Second Industrial Revolution, the profound and diffuse listlessness that Eliot describes appears to be symptomatic of the failure of traditional values and certainties such as religion, family life, and canonical forms of art and literature to infuse human life with meaning in this new context. As the poem describes, religion, challenged by the immense loss of human life and the increase of sexual promiscuity in the war, could not save, family and domestic life could offer no sanctuary, and traditional art forms could no longer accurately depict or reflect human life. While their failure to create meaning implies a kind of fracturing between a pre-war and post-war society in which the modern individual now found itself situated, this failure also discloses the fundamental contingency of socio-cultural norms, values, and traditions. If these values and certainties were inherently meaningful in and of themselves, they would continue to be meaningful irrespective of the contexts and conditions in which they were applied. However, because these values and certainties somehow seemed to lose their meaning for those subjects in the poem and the larger modern society confronted with a sense of meaninglessness and boredom in daily life, they were forced to recognize that their presumed meaningfulness was a self-contrived illusion, or, perhaps, ask themselves “what is wrong with me that these things have lost their meaning?”. Since these traditional values and certainties structured how one (to an extent) related to the world, and by extension, what one did, their failure to create meaning likely produced a sense of boredom in those daily routines which revolved around “oneness” (which might have included, going to church, honoring traditional marriage, relationship, family, or other such dynamics in the domestic sphere, reading Shakespeare, etc.) and configured the “everyday” self. Because what became boring and meaningless was what one did, life was not boring to Dasein as this or that particular individual, but to Dasein as “one-self,” or the everyday self that acts, understands itself, and relates itself to the world in terms of the “One” and what one does. While the “one-self” may not be the particular, subjective self, because it informs, at least in part, how that particular self acts, the boredom encountered through the meaninglessness of Dasein’s everydayness problematizes how Dasein projects both its particular “self” and its they-“self” (as two, essential prongs of one and the same self) into the world. This is distinct from other forms of boredom (such as boredom with a specific object, social setting, event, etc.) in that it overwhelms Dasein’s every action in the world. As such, it can be understood within Heidegger’s notion of “attunement.” Attunement describes a state of mind that disposes us toward the world in a particular way. In order to explain this notion, consider the following hypothetical situation: while sitting in my room, I suddenly hear sirens blaring, people shouting and running, and see smoke leaking out from under my door. I become wholly overwhelmed with fear and alertness, leading me to scour the room for the closest exit or something with which to extinguish the imminent flames. My fear has completely altered the landscape of my environment so that certain objects become alternatively relevant and irrelevant to me depending on how they could be used. The pencil, for example, becomes irrelevant to me while a blanket by my bedside and an open window are relevant insofar as they might serve me in extinguishing the fire or escaping the room. As a result, my fear, as well as any other type of attunement, discloses that I must accept the circumstances of my world as they are revealed to me and what actions may be possible within those circumstances. While I submit myself to these circumstances, they also disclose opportunities for action or ways of utilizing certain objects that “matter” to me, or are significant to me to the extent that they help me extinguish the fire or escape the room. As a result, attunement constitutes how I am disposed toward the world and reveals my disclosive submission to that world. Like fear, profound boredom is a type of attunement in that it reveals our “disclosive submission [to the world], out of which we can encounter something that matters to us.” According to Heidegger, the confrontation with meaninglessness in Dasein’s everyday self can instantiate profound boredom (in which it is “boring for one”). In and through this confrontation Dasein is left “pressing lidless eyes and waiting for a knock upon the door” and is attuned to the world through profound boredom. Let us explore what this means through Jonathan Caballero, a 27 year old software developer who decided to join millions of Americans in quitting their traditional, pre-pandemic jobs. As a software developer, we can assume that in his pre-pandemic office space, Caballero may have perceived chairs, computers, conference rooms, telephones, among other things. He also had access to the different meanings implicit in these objects and the setting as a whole; the chairs, in the context of the office, may be for clients or co-workers to sit in, the computers to conduct programming with, respond to emails, type, etc, the telephone to communicate with, the conference rooms to host important office or client meetings, etc. In addition, we can assume, insofar as Caballero worked in this office in the pre-pandemic era, he comported himself in a particular way toward this office; a comportment that was structured by and made manifest a certain self which he (1) understood himself to be and, thus, (2) projected into the world. Thus, he was invested in the office space and its equipmental totality (i.e., the telephone, the computer, the conference room) as this particular self and for the sake of the projects, interests, and passions that are, to some extent, prescribed by the “one” but also reflect his own particularity as an individual. Each object, then, is meaningful to him through what they make possible toward advancing his multiple projects as his understood self which he understands himself to be. The telephone may be meaningful as a vehicle through which Caballero secures clients who may then elect to employ his services and, in doing so, secure the promise of a paycheck, and thus, fulfill his project of acquiring financial stability, the computer may be meaningful as the site of his work-activity in which he practices and improves his craft toward fulfilling his additional project of being an exceptional software programmer, and so forth. Additionally, the way in which Caballero came into contact with these objects, and by extension, the meaningful possibilities they imply, was in a nine-to-five, traditional working time-frame and environment. In other words, Caballero’s work, for which he was paid, did not simply consist of interacting with a certain kind of equipmental totality toward doing the work (in this case, software programming), but, because that work existed in a larger socio-cultural working structure, consisted of physically going to an office and being in that office space for a set period of time. Why? Because that is what one did as a member of certain sectors of the American labor force. One went to work, one spent time at a specified working location, and one returned home after the work day. Therefore, while his multiple projects (such as securing financial stability and being an exceptional software programmer) were made possible by the fact that those objects in his setting were used, and thus, could be used by one toward advancing these projects, these projects were also made possible by what one did, or more specifically, how one (within this particular sector of the American labor force) worked. Consequently, while they were made possible by how one worked, insofar as Caballero continued to work in terms of this oneness, his projects were also constrained to it. Caballero, then, projected himself meaningfully (to the extent that these projects are meaningful to him as that particular self which he understands himself to be) into the office space in terms of how one worked. This was his “everyday self.” Inevitably, during quarantine, Caballero began working virtually along with most other Americans. For him, this may have meant working from home, zooming into meetings fresh out of bed and still in his pajama pants, and spending what would have been his daily forty-five minute commute to and from the office by instead jumping in his pool and discovering new hobbies and interests. Assuming that the majority of his social community underwent a similar, if not identical, experience, not only did what he did change, but also what one did changed. Thus, one began to act in and relate to the world in a new way, ultimately leading each of us to understand ourselves in terms of this new, quarantine-generated way of being and relating to the world. Being a software engineer, or a college student, no longer implied physically occupying a particular location in physical proximity with others, but implied instead working, communicating, and socializing remotely. Returning to the pre-pandemic work life in this context, Caballero is tossed suddenly back into performing certain features of what one did, such as commuting to work, leaving the comfort of the home, and engaging with people face to face. His routine is now at odds with what he did and, by extension, what one did during the quarantine months. Because quarantine introduced a new performance of oneness and, thus, a new way of relating to the world, how Caballero presently understands himself to be, not simply as a software engineer but as a member of the socio-cultural world in which he exists, conflicts with the daily routines, or performance of everydayness, imposed upon him through the collective return to regular, pre-pandemic work life. Thus, these new routines, because they do not reflect how he understands himself (both as that particular self and as the one-self- which undergirds and gives rise to his particular self) are no longer meaningful to him. In addition, while this collective return strives toward pre-pandemic normalcy, this return breaks down as remnants of the pandemic continue to structure everyday existence. His current routines, while similar to pre-pandemic work life, ultimately fail to mean to him as such because they are, in a literal sense, not the exact same. In sum, then, Caballero cannot fully relate to the re-introduction of old, pre-pandemic routines into his daily life, and the performance of oneness they imply, because (1) what one does currently in these same routines is still somewhat different from what one once did, (2) quarantine changed his community’s performance of oneness, and thus, how he relates to the world in general, and (3) he understands himself, both as a particular self and as member of socio-cultural world in which he exists, differently than he did before the pandemic. Unable to relate to his routines as he once did, they fail to create meaning for him in the way that they had in the past, and he finds himself rehearsing a set of routines and performances that are meaningless to him (i.e. do not mean to him as in the way that they once did). Thus, he may exclaim to himself, staring at his computer in his old office space with his mask slipping beneath his nose, “What shall I do? What shall I ever do?” To which the One replies, “a lunch break at 12:00, a commute home at 4:00, and we shall try to know each other through our masks, pressing lidless eyes and waiting for a knock upon the door.” Like Eliot’s speakers, a profound boredom may pervade his entire approach to his office setting, his social life, and his entire rehearsal of a one-ness that no longer corresponds to his particular interests, goals, and passions as a particular self or his self-understanding within the socio-cultural framework in which he exists. Answering the phone, commuting to work, sitting in an office, these actions no longer mean to him as they once did. He feels profoundly bored. And, in feeling profoundly bored, he is attuned to his equipmental totality (i.e., the objects that are contained within his environment) and the settings in which they occur in terms of this boredom. However, because Caballero is bored with the rehearsal of a past one-ness and a past version of himself implicit in and made possible by this one-ness, his boredom extends beyond the confines of the office. Going to lunch with friends, returning home, cooking his dinner, he is progressing listlessly through the motions of old routines. While working from home may have been a situation particular to Caballero and his social community, most Americans, to some extent, experienced fundamental changes in their routines and daily life during the quarantine periods in the peak of the pandemic. Thus, the phenomenon of profound boredom that I address in this paper, while it varies widely in its causes for each individual, remains a seemingly wide-spread experience in our “return-to-normal” life. As Heidegger writes, in profound boredom “we are not merely relieved of our everyday personality, but elevated beyond the particular situation in each case and beyond the specific beings surrounding us there. The whole situation and we ourselves as this particular subject are thereby indifferent... Indeed this boredom does not even let it get to the point where such things are of any particular worth to us. Instead it makes everything equally great and equally little worth.” “Being relieved of our everyday personality” here means no longer going about our lives as either one does, or as the particular self (which is inevitably, to some extent, structured by “oneness”) that, through its comportment, Dasein understands. For example, instead of attentively picking up phone calls, quickly responding to emails, and meticulously conducting his work (and thus meaningfully re-enacting “how one worked” toward the realization of some particular project as that particular self), Caballero, in this boredom, is detached from and indifferent to the office environment, what one would do, and what he once did (as his past, pre-pandemic self) in that particular environment. In other words, he is indifferent to how objects in that environment may serve the realization of the projects that are meaningful to him. However, he is not only indifferent to what one does, but what one does becomes indifferent to him. The equipmental totality of his world and the beings included in that world (that designate, through “how one worked,” how that totality might or should be utilized) no longer offer him any possibility of acting out his project, which has become meaningless; they “refuse” him meaning. As Heidegger writes: There is a telling refusal on the part of beings for a Dasein that… in the midst of these beings as a whole comports itself toward them (toward them, toward those beings as a whole and their now telling refusal) and must comport itself toward them, if it is indeed to be what it is. Dasein thus finds itself delivered over to the being's telling refusal of themselves as a whole. As Dasein, Caballero inevitably comports himself toward the world as the particular self which he understands himself to be. However, because this “self” has fallen flat, or is no longer meaningful to him, he comports toward a world without meaning or possibilities in that comportment. Therefore, beings as a whole which once created and gave rise to new meaningful possibilities for him as that self, now “refuse” him those meaningful possibilities. This “telling refusal” by beings as a whole constitutes the first essential, structural moment of profound boredom: being-left-empty, being without meaning to be discovered in beings as whole. However, in telling refusingly, beings as a whole also highlight the possibilities for meaning-making that Dasein has exploited and are no longer meaningful to it. Sitting in his office or his home, his computer, his clients, his pens, his telephone, his friends, and his dinner table all refuse Caballero meaning as objects and beings through which he can act out his “self-hood.” In his profound boredom, the interaction with these beings and objects signals to him that they cannot be employed toward meaningful action because they imply a commingled performance of one-ness and a particular “self-hood” that are not meaningful to him. For example, his dinner table is no longer meaningful for him as something which one now, in our quasi-post-pandemic world, uses again (and thus makes possible) to dine amongst friends, but an object, which, in his profound boredom, points to his incapacity for meaning-making by continuing to exploit the possibility of “how one now uses” a dining table. Because using the dining table as such involves rehearsing a performance of pre-pandemic oneness that no longer corresponds with how Caballero understands himself (perhaps because he has since become uncomfortable with hosting dinner parties or having people over in general), his interactions with the dining table disclose (or “point to”) his inability to find meaning by continuing to exploit the possibilities involved in what one did before the pandemic. In revealing his exploited possibilities (i.e. the doing as both one and he once did) “ .. .there occurs the dawning of the possibilities that Dasein could have, but which are left unexploited precisely in this “it is boring for one,” and as unexploited, leaves us in the “lurch”. In other words, confronted with the meaninglessness of his own rehearsal of what one used to do before the pandemic (and consequently, the rehearsal of his particular, pre-pandemic self which understood itself in terms of a pre-pandemic oneness) and the possibilities for acting within that oneness, he becomes aware of other unexploited possibilities for acting. As a result, the telling refusal of possibilities carries, by association, a telling announcement of the possibilities he has not yet exploited. This telling announcement does not point to any one unexploited possibility for meaning-making, but rather points (arbitrarily) to the fact that there are possibilities that he has not yet explored. However, because these possibilities are left unexplored in Caballero's total and complete boredom with the world in general, he does not take up meaningful action and is thus, as Heidegger writes, “left in the lurch” or entrapped in a kind of limbo of inaction. This “being-left-in-lurch” or “being-in-limbo” in which Caballero is confronted with but does not act upon unexplored possibilities comprises the second structural moment of profound boredom: because “being-left-in-limbo” precludes a kind of meaningful moving forwards, it has a certain temporal feeling. When beings and the possibilities they create for meaning-making (i.e., a doctor makes possible the use of a scalpel as a medical tool, and thus, a meaningful tool for particular purposes) refuse themselves to Caballero, they refuse themselves as a whole: they refuse themselves in every respect, or in every respect, retrospect, and prospect, such that every past possibility that he exploited becomes meaningless to him as the version of his “self” he enacts has fallen flat. Likewise, any future, to-be-exploited possibility toward projecting that version of himself is also meaningless to him. But to whom do these possibilities refuse themselves? Not to Caballero as Caballero the particular, subjective individual, but to Cabellero as that self which acted in and related to the world in terms of a pre-pandemic one. As such, it is not boring for Caballero as the individual person, but boring for him as “One” or insofar as he continues to rehearse a kind of oneness that is no longer meaningful to him. But in the context of his own boredom with that pre-pandemic self that causes his possibilities as that self to recede, that pre-pandemic-self does not lose its determinacy, “but rather the reverse, for this peculiar impoverishment which sets in with respect to ourselves in this ‘it is boring for one’ first brings the self in all its to nakedness to itself as the self that is there and has taken over the being-there of Dasein. For what purpose? To be that Dasein”. In other words, in his profound boredom, as the meaningful possibilities for acting are refused to him as a pre-pandemic-self, he becomes aware of this refusal of the pre-pandemic self, and consequently, becomes aware of the self itself, or the self which he has chosen to project over his existence (i.e., “being-there” or Dasein) in the world. In becoming aware of that pre-pandemic self, he becomes aware of (1) the fact that he has chosen to be or act as that self, (2) rehearsing what one does or what one did is not inherently meaningful, and (3) that, as a result, in his existence as Dasein he has the possibility to choose other selves that do not adhere to the “one.” For example, it is possible for him to take advantage of new socio-cultural possibilities that are becoming available such as: the emergence of partially or fully virtual employment, the shift toward smaller in-person social circles, and the new, national emphasis on self-care and mental wellbeing. Thus, his boredom discloses to him that he must accept the circumstances of his world as they are revealed to him and what actions may be possible within those circumstances. The circumstances, and by extension, the world itself, thereby determines how he can act. Since he must accept the world’s determinations as to how he can act, he necessarily submits himself to the world. Still, this submission is not entirely passive. Instead, because his boredom reveals that he is capable of enacting a self (in this case, his pre-pandemic self), he becomes consequently aware of the possibility of enacting other selves and other ways of performing “oneness” that are gradually being made possible to him and to all of us in general. As a result, his boredom reveals the originary capacity of Dasein to make-possible other selves and the fact that he can choose to make-possible other selves that are meaningful to him. Confronted with the immensity of Dasein’s capacity to make-possible, without any definite direction as to what self or possibility he should enact, he is “held-in-limbo.” The phenomenon of “being-held-in-limbo” also involves a unique form of temporality. Refused any meaning by rehearsing the pre-pandemic one-self by beings as a whole, Caballero is refused meaning in every respect, retrospect, and prospect, or in the past, present, and future. In this way, beings-as-a-whole are no longer open to him along a temporal horizon, and the possibilities that they present along this horizon are closed off to him as him self because he is no longer interested in them as future possibilities for meaning-making nor finds his past actions and exploited possibilities meaningful. But, if beings as a whole refuse themselves in terms of a temporal horizon, such that Caballero cannot move forward meaningfully in time alongside them (or, in recollecting, conceive of past instances of action as meaningful to him), then they also make manifest those possibilities which he has not yet exploited in terms of a temporal horizon. The unexploited possibilities are things which he may have done in the past (retrospect) or can do in the future (prospect). Confronted with Dasein’s capacity for making-possible in the past and future, he is not only held-in-limbo at the immensity of the unexploited possibilities available to him, but entranced in time insofar as these possibilities remain unexploited. For example, thinking back to his past experiences in the office or in his training to become a software developer, he may discern other opportunities that he did not take up such as, perhaps, working in a satellite location in New York City or South America, working at a different corporation, or becoming a doctor, engineer, or astronaut,. Conversely, thinking toward his future, he may discern possibilities that are available to him in the here and now. And yet, insofar as he does not take up these possibilities, he remains entranced in time such that he remains indifferent to his past, present, and future and cannot move meaningfully forwards or backwards in time. He breaks this entrancement and transcends his boredom by experiencing “the moment of vision.” As Heidegger writes in The Fundamental Concepts of Metaphysics , “the moment of vision is neither chosen as such nor reflected upon and known. It manifests itself to us as that which properly makes possible, that which is thereby intimated as such only in being entranced in the direction of the temporal horizon and from there, intimated as what could and ought to be given to be free in Dasein’s proper essence as that which makes it most intrinsically possible, yet now in the entrancement of Dasein is not thus given.” The moment of vision is not experienced as a dramatic, transcendental instance, but as a kind of realization of the fundamental, originary properties of Dasein (i.e., “what properly makes Dasein possible”). As a being-there which comports itself understandingly toward that being, Dasein’s capability to enact a self and comport itself as that self in the actions and choices it undertakes is fundamental to its existence as Dasein. Thus, the moment of vision involves a “resolute disclosure of Dasein to itself,” or an awareness of Dasein’s own freedom to choose which self it wants to enact and then enacting that self that it chooses. Because Dasein’s self-enactment occurs along a temporal horizon (i.e., Dasein understands itself to be its “self” through past actions and choices taken as that self, enacts that self in the present, and projects that self in the future), its entrancement in time during profound boredom intimates, in its being refused meaningful action and doing in every retrospect, respect, and prospect, Dasein’s capacity to engage in meaningful action and doing within a temporal horizon. Thus, the instance in which Caballero resolutely discloses his own freedom to choose a self he wants to enact to himself, he experiences a kind of “moment of vision.” Soon after returning to his regular pre-pandemic job, Caballero quit and started looking for jobs with better remote work options. Now, we can assume that Caballero has time to jump in his pool in-between meetings and pursue those hobbies and interests that were otherwise impossible with his daily, pre-pandemic commute. By quitting his job and choosing to explore an alternate possibility of post-pandemic one-ness that is meaningful to him (in that this possibility enables him to engage with aspects of his life that became important to him during the pandemic), Caballero has exercised his essential freedom as Dasein and altered his comportment toward the world in a way that enables him to engage in meaningful doing and action in every retrospect (i.e., his past experiences have given way to his new self-enactment and are thus meaningful to him) respect (i.e., his current choices and actions now harmonize with what is meaningful to him), and prospect (i.e., his future choices will be meaningful to him insofar as he continues to enact that self which enables him to realize those projects which are meaningful to him). In sum, by altering his comportment toward the world, Caballero enacts a new self within that world, one that authentically (insofar as this new comportment reflects what is meaningful to him) incorporates and utilizes “oneness” toward realizing and fulfilling himself meaningfully. Importantly, this transformation in how he comports himself toward the world involves a meaningful repetition of “what one did.” While Caballero, as a member of a particular socio-cultural framework which requires some degree of financial stability in order to continue participating within that same socio-cultural framework, continues to work, he does so in a way that enables him to pursue his other interests and passions. Thus, he repeats or rehearses oneness (i.e., the socio-cultural emphasis on financial stability) in a way that is meaningful to him as a particular self. Reciprocally, how he comports himself toward the world (i.e., rehearses oneness) as that particular self manifests that which is meaningful to him (i.e., those projects, interests, and passions that comprise his “for-the-sake-of-which”) as that self. While T.S. Eliot and Heidegger were distinct writers and thinkers, they both seem to proffer the meaningful repetition of one-ness as a solution to profound boredom. In Eliot’s work, his meaningful repetition of “oneness” is exemplified by the structural fragmentation within his poem “The Waste Land . ” Throughout the poem, Eliot includes miscellaneous fragments of Dante, Shakespeare, Greek myths, as well as ancient languages such as Sanskirt. On a superficial level, these fragments produce a sense of disorientation and confusion within the reader who must now assemble these fragments toward a cohesive interpretation of the poem. While the reader’s sense of disorientation parallels modern society’s confrontation with meaninglessness and subsequent inability to ground existence in meaningful forms of doing and action in post World War I society, the fragments also illustrate how aspects of past, traditional pieces of literature can be assembled or “repeated” in a way that allows them to meaningfully reflect the modern experience. In the final section of the poem “What The Thunder Said,” Eliot begins by describing an apocalyptic scene in which “there is no water but only rock” and Jerusalem, Athens, Alexandria, Vienna, London, all descend into “unreality.” Here, Eliot describes the literal and spiritual devastation of Western civilization. The downfall of Jerusalem, Athens, and Alexandria all represent the inability of Ancient Western religion, art, literature, and history to salvage modern society from its ruinous apocalypse of meaningful action and doing by grounding that doing and action in the traditional values and certainties that characterize them. Instead, the downfall of London and Vienna, describes the devastation of a modern society unable to meaningfully ground itself in its Western socio-historical traditions and values. Thus, London, Vienna, Alexandria, Athens, and Alexandria, become “unreal;” they no longer possess or provide a meaningful reference point for real modern life to guide itself. Following this apocalyptic scene, Eliot writes at the end of the poem: I sat upon the shore Fishing, with the arid plain behind me Shall I at least set my lands in order? London Bridge is falling down falling down falling down Poi s’ascose nel foco che gli affina Quando fiam uti chelidon—O swallow swallow Le Prince d’Aquitaine à la tour abolie These fragments I have shored against my ruins Why then Ile fit you. Hieronymo’s mad againe. Datta. Dayadhvam. Damyata. Shantih shantih shantih. Sitting upon the cusp of the poem’s conclusion and fishing for meaning within the “arid plains” of the apocalypse looming behind him and before him, Eliot attempts to reinvigorate fragments of canonical pieces of literature by “organizing his lands” or assembling them together in new ways. The line “ Poi s’ascose nel foco che gli affina ” is an allusion to Canto 26 of Dante’s “Purgatorio”, meaning “then he hid in the fire that refines them.” According to Sussex University Professor Cedric Watt’s explication of these last ten lines, “the ‘he’ is Arnaut Daniel, the medieval Provençal poet. He has just told Dante that he repents the sins of his past and looks forward to the heaven that he will eventually reach after suffering the purgatorial flames.” The following line “ Quando fiam uti chelidon ” from the anonymous Latin poem ''Pervigilium Veneris” means “when shall I be like the swallow.” In this poem, “the raped Philomela has undergone a healing metamorphosis into a songbird, making her complaints sound as joyous as a song. The next line, “O swallow swallow,” refers to Alfred Tennyson’s lyric in “The Princess” in which “a swallow is flying south to warm lands, away from the earthbound poet.” Finally, “ Le Prince d'Aquitaine à la tour abolie ,” a line from Nerval’s ‘El Desdichado’, meaning “The Unfortunate or Disinherited Man,” a French poem with a Spanish title, means “The Prince of Aquitaine at the ruined tower.” According to Watts, “the gist of the poem is: ‘I’ve been through hell, but I’ve survived to tell the tale, I’ve known loss and grief, but I’ve had my dreams and can make songs of my experiences.” Independently, each of these lines refer back to larger poetic works, and thus refer back to the traditional literary structures, styles, and modes of human experience embedded in and advanced by these works. However, by separating these fragments from their larger poetic totality and compiling them together in a new structure, Eliot alienates them from the poetic works and traditional literary structures and meanings to which they pertain. By alienating them from their original works and compiling them together, Eliot also re-appropriates them in a creative way. Through this creative re-appropriation or repetition of these fragments, they ultimately produce a new narrative, one that neither of them originally pertained to or advanced. Essentially, this new narrative suggests that repentance or self-forgiveness will enable the grieving post-war civilization to transcend its own purgatorial limbo toward a kind of recuperation of meaningful doing and action in modern life. Because this narrative reflects and diagnoses the post-war human experience, Eliot’s creative repetition of past literary fragments enables him to meaningfully describe and reflect human life as it is, thus re-invigorating literature’s capacity to invoke human experience overall. As a result, the fragments “shore against his ruins,” or act as a buffer against his destruction as a poet in a dying artistic field and as a modern individual confronted with the meaninglessness of the traditional values and certainties implicit in socio-cultural norms. Eliot concludes the section ironically with “Why then Ile fit you, Hieronymo’s mad againe,” the subtitle of Thomas Kyd’s play The Spanish Tragedy meaning “why then I’ll fix it for you, Hieronymo’s mad again.” While the line acknowledges that his atypical poetic structure may induce readers to think him insane, Eliot’s “I’ll fix it for you” reaffirms us of his craftsmanship and ability to “fix” literature’s inability to capture and resolve modern society’s post-war sense of meaninglessness. The poem ends with the repetition of “shantih, shantih, shantih”, a Sanskrit word meaning peace or inner peace prayed at the end of the Upanishad in the Hindu religion. Pointing ambiguously toward Eastern modes of spirituality, Eliot leaves us to “fish” our own individual meaning out of his fragments. Because the poem incorporates a creative repetition of past canonical forms of literature toward developing a form that can meaningfully reflect the modern human experience, it attempts to restructure how “one” relates to and understands these canonical forms of literature. Instead of writings that can no longer invoke what it means to be human, Eliot’s fragmentation gives them a new applicability to the modern experience. Thus, Eliot’s creative repetition of how one related to canonical works makes those works newly meaningful to the post-war reader as a compilation of fragments, both within the poem (i.e., as resolving the poem’s central conflict) and as suggesting ways to transcend their own confrontation with meaningless and profound boredom in post-war society. Similarly, by creatively repeating and reassembling aspects of what one did in the pre-pandemic world with what one did during quarantine, we compile together a structure akin to Eliot’s fragmentation. Assembling these fragments of “oneness” in a new montage that authentically expresses how one, and how we each individually, relate to the world in the context of enormous crises, anxiety, and change, we can enact new possibilities of being and acting that are meaningful to us and, thus, shore against our own ruinous experiences with profound boredom and meaninglessness. While Heidegger’s “moment of vision” describes the instance we are disclosed to our own freedom to choose which selves we want to enact, Eliot’s fragmentation demonstrates how we can enact that self through meaningful repetitions of our oneness. While Caballero experienced a meaninglessness rehearsal of oneness in his return to the pre-pandemic work-life structure because it invoked a self that he no longer felt or understood himself to be, by quitting his job to pursue remote working options, he creatively assembles a performance of pre-pandemic one-ness (in that he continues to work) with a performance of quarantine one-ness (in that he begins to work virtually and make time for his other interests and passions) that reflects how he understands himself to “be” in the world. As such, the creative repetition of past possibilities seems to offer a productive solution to the post-pandemic phenomenon of profound boredom. As we each reevaluate our current rehearsal of oneness, quit our jobs, change our career or academic tracks, tighten our in-person social circles, restructure our relationships, and travel the world in pursuit of new possibilities for meaningful doing and action, we create new ways of understanding ourselves and relating to the world in general. Perhaps, a new performance of one-ness may be gradually unfolding before us. References Heidegger, Martin, and Edward Robinson. “Chapter 4, The They.” Essay. In Being and Time , translated by John Macquarrie, 149–68. Harper Perennial, n.d. Heidegger, Martin, William McNeill, and Nicholas Walker. Essay. In The Fundamental Concepts of Metaphysics: World, Finitude, Solitude , 136–52. Bloomington, Indianapolis, Indiana: Indiana University Press, 1995. Wrathall, Mark A. “Everydayness and The One.” Essay. In How to Read Heidegger , 47–70. New York, NY: W. W. Norton, 2006. Chapters 5-6 Eliot, T. S. “The Waste Land.” Poetry Foundation. Poetry Foundation. Accessed February 12, 2022. https://www.poetryfoundation.org/poems/47311/the-waste-land . Watts, Cedric. “The Last Ten and A Half Lines of the Waste Land.” The Last Ten and a Half Lines of the Wasteland . Poets.org.Academy of American Poets, May 20, 2004. https://poets.org/text/brief-guide-modernism . Hsu, Andrea. “As the Pandemic Recedes, Millions of Workers Are Saying 'I Quit'.” NPR , NPR, 24 June 2021. Bruner, Raisa. “Why Young People Are Quitting Jobs-and Not Going Back.” Time, Time, 29 Oct. 2021. Fontinelle, Amy. “The Great Resignation.” Investopedia. Investopedia, May 5, 2022. https://www.investopedia.com/the-great-resignation-5199074 .

Author Name < Back Unwitting Wrongdoing: The Case of Moral Ignorance Madeline Monge Should we blame and praise people for actions which they are ignorant of performing or which they take to be morally neutral? There are two competing theories for the moral assessment of ignorant agents. Capacitarianism focuses on whether an agent could have to have done something to not be ignorant but instead acquire moral knowledge. Valuationism determines an ignorant agent’s blameworthiness by looking at their values. Someone is blameworthy if they act within their values and still commit the harmful act. My paper makes three points. First, I examine how thought experiments revolving around moral issues are either written in support of, or as counterexamples to, the two theories of moral responsibilities. The description of these thought experiments causes the reader to lean in favor of what the theorist is trying to argue. In other words, these thought experiments function as intuition pumps. Second, reflection on the thought experiments used in support of the two theories of moral responsibility reveals that these theories, rather than being rivals, are two sides of the same coin. In this paper, I presuppose ignorance is a lack of knowledge. Knowledge I take to be a composite state that consists at the very least of three necessary conditions: truth, belief, and justification. This view, which can be traced back to Plato’s Theaetetus , claims that what distinguishes knowledge from mere true belief and lucky guessing is that it is based on some form of justification, evidence, or supporting reasons. The truth condition of the justified-true-belief analysis of knowledge states that if you know that p, the p is true. The truth condition need not be known; it merely must be obtained. The belief condition claims that knowing that p implies believing that p. Finally, the justification condition demands that a known proposition is evidentially supported. he justification condition prevents lucky guesses from counting as knowledge when the guesser is sufficiently confident to believe their own guess. Given that ignorance is the lack of knowledge and given that knowledge has at least three necessary conditions, there are many different sources of ignorance: lack of belief, lack of truth, and lack of justification. There are numerous psychological factors that can give rise to each of these three conditions. Among these psychological factors are forgetting, cognitive biases, miseducation, or lack of exposure. I presuppose this ignorance to be lacking knowledge. There is not only one type of ignorance, rather, there are two main classes of such: factual ignorance, and moral ignorance (Rosen, 64). There are various sources of ignorance from where factual and moral ignorance arise. When someone does not know, forgets, is lacking exposure to, is miseducated, does not retain, or misunderstands a given fact that cannot be disputed under any circumstance, they can become either factually or morally ignorant. These sources can be relieved with conscious effort, or by external involvement (Rosen, 302). Ultimately it is up to the agent to recognize errors that result from their ignorance. A debate surrounding the exculpating factors of moral or factual ignorance is important to understand. It is generally thought that immoral actions can only be exculpated by factual ignorance, but not moral ignorance. Factual ignorance hinges around objects of descriptive facts. I will be using an example of slavery in ancient slave-times to illustrate this concept. Let’s suppose someone lives next door to someone who has slaves but also does not know they are living next door to slaves. This would be a situation of factual ignorance because the neighbor does not know the fact that there are slaves living next door (Rosen, 72). It could be because they are unobservant, or because the slaveholder does a good job of keeping the slaves quiet; there is also the chance that the neighbor doesn’t care, is distracted by their own life, or denies their worry of believing that there are slaves. The slaveholder hiding slaves is an objective/descriptive fact that cannot be disputed. Even if they deny it, the slaveholder would still have slaves, and the descriptive fact would not change. On the other hand, moral ignorance arises when someone is ignorant of a moral fact. Moral facts are normative, and they prescribe courses of actions that are true simpliciter (Rosen, 64) . If the neighbor to the slaveholder knows that they are living next door to slaves, but does not know the slaveholder is harming them, this wouldbe moral ignorance. It is morally impermissible for the slaveholder to have and harm slaves. The neighbor should know the slaveholder is acting immorally by keeping and harming the slaves. Moral ignorance does not stop at the fact that the neighbor does not know it is morally wrong to harm people, but they may also not know they should do something about the harm. This ignorance of harm can be defined as, not knowing that an action may cause pain (harm) when one should know it does so. They also ought to know that, without good reason, harming people should be avoided at all costs because it is morally impermissible (Biebel, 302). Should the neighbor be exculpated because of factual or moral ignorance? If the neighbor does not know that having and harming slaves is morally impermissible, this could not be factually exculpated. This is a case of moral ignorance. The neighbor would be morally exculpated for their ignorance in this scenario because they are unaware that having and harming slaves is impermissible by moral standards (Rosen, 66). There is no opportunity for the neighbor to be factually ignorant. What prompts this type of ignorance? Perhaps the neighbor does not care that the slaves are being harmed, is distracted by other events, or is afraid of the repercussions that will incur because of speaking out against the moral injustice. The most important aspect of moral ignorance is to remember that it is prescriptive, and not descriptive. The argument of moral ignorance and blame revolves around what should or shouldn’t be done because of lacking knowledge. This is largely in part to the distinction between factual and moral ignorance. Factual ignorance may sometimes exculpate an immoral action, but it is ultimately moral ignorance that will exculpate an individual (Sliwa, 6). I. Capacitarian and Valuationist Assessments of Moral Responsibility: There are now several theories that concern moral ignorance: volitionist, attributivist, capacitarian, valuational, parity, and pragmatic. While all differ from one another in how they attribute blame to cases of moral ignorance, capacitarian, parity/pragmatic, and volitionism share a disposition of blame that focuses on someone’s capacity of knowledge (Biebel). Valuationalism and attributivism respond to blameworthy actions as being dependent on the personal volition of the agent. I’d like to classify these two categories as capacitarian and valuational. I will occasionally refer to specific points that individual theories make, but with the example of the slaveholder, I will continue the conversation with the two main theories. The capacitarian theories revolve around the counterfactual capacity that an individual has when deciding which action to take in a morally relevant situation that could’ve been prevented. They look at situations where someone is blameworthy. They want to know if it was in the agent’s capacity to correct or avoid being ignorant, and if this would have prevented them from performing the immoral action. Capacitarians consider people responsible for their actions if they are responsible for their capacity of behavior. People who lack the capacity for knowing what is morally permissible, say children, or people who are mentally incapable of retaining information relevant to moral standards, are not culpable for their immoral actions. They can be corrected, and may learn afterwards, but they are not blameworthy. They lack the ability to retain vital moral considerations. Capacitarians do not skip over the fact that people’s ignorance may be the reason they are acting immorally. If someone believes from their ignorance that what they did was the most rational and correct method of handling a situation of moral relevance, then they may be exculpated. However, this justification is only one part of the knowledge needed to have an accurate and knowledgeable conclusion. How a morally significant situation should be handled depends on someone’s capacity to know whether they had the opportunity to do something differently. This difference in choice may have changed someone’s ignorance into knowledge and prevented the immoral action. When someone is not aware why they are ignorant, they are also unaware of how they can resolve their lack of knowledge. This is the way capacitarian’s view moral ignorance to be exculpable, and encapsulates much of capacitarians’ concern. How can someone be blamed for not knowing a moral standard if they have never been socially conditioned or taught what the moral standard is? When I go over the varying vignettes that hone in on how the capacitarian theory can be utilized I will be able to further demonstrate the degrees of internal and external factors that influence moral ignorance, conveying how someone might come into the position to remedy their ignorance but lack the awareness or determination to do so. Arguing against the capacitarian theory is the valuationist theory. Valuationism responds to capacitarianism with a specific criticism. Capacitariansim uses immoral ignoramus as a clear reason to excuse someone from an immoral action, but valuationists believe that the capacitarian theory is too easily applied to every case of immorality. They do not think it is wise to exculpate someone who has forgotten or is unknowledgeable about morality. Valuationism approaches the topic of blame and exculpation surrounding immoral actions by looking at omission and forgetfulness. The theory considers omission and forgetfulness to lead to potentially harmful instances of ignorance. Harmful ignorance is when someone consistently shows blameworthy immoral actions. Valuationists trace the value systems and the past actions of agents to see what led them astray towards immoral actions. They look at recidivism rates, as well as values and virtues. Valuationalism investigates how people are held accountable for their actions and believe someone is only deserving of moral praise if they have reason to act morally. Moral responsibility is the condition of whether someone is praiseworthy, blameworthy, or excused from the former two because of their involvement in a moral act. Someone could also fail to act or omit an action. This is potentially why someone deserves a moral reward or punishment. Valuationists agree that psychological states may affect someone’s behavior to act accordingly during a moral situation. They see this as one component in the person’s link to act or neglect to act. Therefore, valuationists think it can only serve as a partial excuse for someone and is not a strong enough argument to exculpate them from a morally relevant situation. Psychological states in a valuationist framework does not make someone incapable of moral knowledge, nor does someone’s emotional attachment serve as a reason for someone to act immorally. Whether someone cares about an action does not render them more or less blameworthy. It may affect how much or little they will react, but it should not affect their moral assessment. Therefore, valuationalist’s believe that most people are, more often than not, blameworthy for their moral ignorance. If they have not responded in a morally kind manner to a situation, it’s because their values align with preconceived notions of their background. These preconceived notions are often the fundamental reasons for why someone acts immorally. Capacitarians avoid looking at an agent’s value system because they want to know if the immoral act could have been avoided, and if the agent could have prevented themselves from being ignorant in the first place. When we look at somebody's capacity to act, we are tracing their past actions and whether or not they had the ability to change their moral knowledge. Capacitarians rely on a history of someone’s actions. The values that arise from somebody's capacity to act are decided through the person's past actions from the moment they are born. Capacitarians look at past actions carefully because the culmination of them sets up the targeted subject that a valuationist uses to counter their argument. Values are deeply seated through someone’s past actions. The more they are reinforced through choice of action and external influences, the more established they become. The deeply seated beliefs that someone has grown into values are important for evaluating the response a person has to a morally loaded situation. We saw examples of this in the altered versions of the vignettes. Without the added context, a reader wouldn’t have been able to tell what the characters valued, nor what their guiding principles were. When we manifest actions as guiding principles, we are acting from a result of our values. These have been established by our capacities to act in the past. The values we are focusing on in this paper are intrinsic. For example, valuing education leads to being more productive in helping your children with their schoolwork and helping them improve when they need it. Valuing health means you likely eat a balanced diet and exercise regularly. These specific examples of intrinsic values provide a foundation for readers to rest on when making their own evaluative judgments. These intrinsic values lead to other good things, like, your children getting into a good school, and you living a life with bountiful opportunities because of your health. The Valuationist Theory focuses on such intrinsic values, and are meant for the valuationist to rationally conclude whether the characters in the vignettes are blameworthy or not. Values directly shape what people do and say. Their actions are subsets of behavior, and their behavior is a combination of capacities for potential action and values. Action is intentional behavior. Guiding principles of values will manifest as actions. The way we act is a subset of our values and that action is intentional. Each subset, whether planned or an unconscious reaction, is a value in disguise.Our actions are mostly intentional and based on our values, but sometimes they can be accidents due to forgetting. They may also be from a lack of capacity to change behaviors in the past and potentially due to a lack of values. II. Perspectives on the Assessment of Moral Responsibility with Respect to Capacitarian and Valuationist Approaches: In this next section, I will review various vignettes that scholars have introduced into the conversation of moral ignorance, discussing how our theory of moral responsibility will change depending on how the stories are described. I will be using a vignette from Alexander A. Guerrero’s 2007 article, “Don’t Know, Don’t Kill: Moral Ignorance, Culpability, and Caution”, which discusses the moral ramifications of poisoning someone with cyanide. I will also incorporate a recent, original vignette about the moral culpability of leaving a dog in a hot car. Both cases convey how the same set of events may be narrated in a way that supports the C or the V theory. . The support from these different theories is not derived from the event themselves but in how their contexts are described. Omitting and highlighting certain features will change which theory best explains whether someone should be blamed or praised. It is impossible to give a complete account of these theories in these vignettes, but we will be careful in fully describing each theory and embellishing. This will show which theory best explains each vignette. Both what could have happened and what is described will show whether one is morally blameworthy in the capacitarian sense. If a vignette lends itself to the capacitarian theory, it will focus on possible actions that could have changed depending on the capacity of the protagonist’s acknowledgement to do something differently. If the vignette falls towards the valuationist perspective, it is because of the protagonist’s present character traits and values. A. Case One: Guerrero’s Poison Let’s consider the case of Anne, who poisons Bill by spooning cyanide into his coffee. Anne believes she is spooning sugar, and she is blameless for her false belief. Is Anne blameless for poisoning Bill? Rosen concludes that an action done from ignorance is not a locus of original responsibility. This means Anne is only responsible for poisoning Bill if she is responsible for her ignorance about the fact that she is poisoning Bill. Guerrero has constructed a vignette that partially supports a theory where ignorance can be morally exculpated. What happens when details of the character’s capacities and values are introduced? I’m going to reintroduce Guerrero’s story with these details added to demonstrate the effectiveness of manipulating the story so the capacitarian or the valuationist theory provides a better explanation and justification of our natural inclination to blame the protagonist. B. Case Two: Guerrero’s Poison (modified) Let’s consider again the case of Anne, a single mother who is Bill’s girlfriend. Bill regularly comes over in the morning to share a cup of coffee because he has been dating Anne for a few months. After a long night of helping her children prepare for an important exam, Anne believes she is spooning sugar into Bill’s morning coffee and is unaware that she is poisoning him with cyanide. Anne does not know that last night after she went to bed exhausted from tutoring her children, she had a sleepwalking incident where she mistakenly poured out the sugar in the sugar dish and replaced it with cyanide. Afterwards, Anne went back to bed and did not remember what she did in the middle of the night. That morning while Anne was spooning poison into Bill’s coffee, he innocently read the morning news on his phone and did not give the sugar a second thought. Was it in Anne’s capacity to make sure she was spooning sugar and not cyanide into Bill’s coffee? If Anne does not regularly sleepwalk then we cannot expect it to be within her capacity to know that she ought to check the sugar dish just in case she had tampered with it the previous night. What about Anne’s values? We know that Anne values relationships and caring for others, as well as education. This is why she stayed up to help her children prepare for an exam, and also why she regularly invites her boyfriend over for coffee. Here Anne is not blameworthy for her ignorance, nor has she acted within a set of immoral values that would prompt her to poison Bill. This has never happened before to Anne. Anne has never sleepwalked a day in her life and has a consistent record of showing Bill hospitality and care. Under a valuationist’s account of moral blame, Anne would not be considered blameworthy because her actions do not align with her values, and after the incident, she continued to grieve and disapprove of her ignorance. She did not intend to cause suffering, nor does she value suffering. Anne unfortunately is the cause of Bill's death because she had a momentary lapse in her sleep routine which caused her to act involuntarily on account of ignorance. In this case, Anne would not be blameworthy by capacitarian standards, nor by valuationist standards. Anne is not originally responsible for poisoning Bill, and she would be considered morally exculpated. Based on what the story tells us about Anne’s character traits and values, one can see that she did not act with malicious intent. It was an honest mistake, and a serious accident. Even though Anne has never sleepwalked before, would it be reasonable to expect her to check her sugar before she gives it to Bill? I think it would be considered unreasonable for anyone to expect Anne to check her sugar because Anne does not have a past history of swapping out her sugar with other substances. If it were the case that Anne has sleepwalked before, and she has a past history of replacing her sugar with other substances, like salt, powder bleach, or baby powder, then it would be reasonable to expect her to check. If Anne had a history of swapping substances, then her negligence to check on the sugar dish would be an involuntary act in ignorance. In this vignette, how a capacitarian and a valuationist consider someone to be morally blameworthy or exculpated is revealed through the protagonist’s capacity and character traits. This example shows us that the capacity of memory to prevent a potentially harmfully ignorant situation is a mitigating factor in someone’s judgment of immoral behavior. Anne did not willfully act immorally and is not blameworthy for her involuntary action done out of ignorance (Alvarez & Littlejohn, 8). Both theories attribute a small degree of responsibility to the harm Anne has done, but not enough to judge her as being willfully ignorant nor morally culpable. Capacitarian and valuationist theories agree with each other in how they assess this vignette due to Anne’s isolated incident. Let us take another vignette to compare capacitarian and valuationist theories. In this next scenario we have the unfortunate event of a dog dying after being left in a hot car unattended for some time. C. Case Three: Hot Dog Imagine Mrs. Crawford is out running errands with her medium sized cocker-spaniel in the back seat. The dog is in good health, well-groomed and fed, and Mrs. Crawford sees to it that he is well taken care of. Today of all days Mrs. Crawford pulls into a parking lot with no shade to block out the sun from her car. There is no breeze, and it is ridiculously hot outside. Instead of bringing her dog into the store with her, Mrs. Crawford decides to leave her dog in the car with the windows rolled up. She reasons that the air-conditioner was on during the drive to the store, so the car is not muggy or hot. She also reasons that she will not be in the store for a long time because she has a list of things she wants to purchase. At this point in her decision, Mrs. Crawford locks the car and leaves for the store. Suppose Mrs. Crawford is making good time in the store. She is almost done picking out everything on her list and is careful not to get sidetracked. However, Mrs. Bailey sees Mrs. Crawford in the aisle over and makes her way to talk to her about some important matters. Mrs. Crawford is delighted to see and talk to Mrs. Bailey, and easily becomes swept up in her conversation. She remembers her dog is in the car but does not remember how hot it is outside because the store is well air-conditioned, aiding to Mrs. Crawford’s choice to talk to Mrs. Bailey for longer than expected. Now the dog is still outside in the hot car, and because it is not properly ventilated or shaded, the car quickly becomes extremely hot inside. The dog is soon unable to withstand the heat and becomes sick and passes out in the back seat before Mrs. Crawford returns from the store. Mrs. Crawford is mortified. She had no idea that leaving her dog unattended for as long as she did would result in its sickness. She quickly takes her dog to the vet. Here we have a vignette that sets up Mrs. Crawford to be morally exculpated by her ignorance if we are not considering her values or capacity to have made changes in favor of the dog’s life. We are now going to see another representation of this vignette with both capacity and values of Mrs. Crawford included. Within this next vignette, I will provide more background information that will show how someone's capacity can prevent ignorance from occurring or may cause someone's ignorance to flourish. I will also be including Mrs. Crawford's values, which will show whether-or-not by the valuation as to perspective that Mrs. Crawford is in fact acting in line with her values. D. Case Four: Hot Dog (modified) Imagine Mrs. Crawford is a steady workaholic. Mrs. Crawford decides to skip her dog’s walk and bring them to the store with her. She is alert, and well aware that bringing her dog with her might be a hinderance, but she does it anyway. Today of all days Mrs. Crawford pulls into a parking lot with no shade to block out the sun from her car. There is no breeze, and it is ridiculously hot outside. Instead of bringing her dog into the store with her, Mrs. Crawford decides to leave her dog in the car with the windows rolled up. She thinks she is doing the right thing by leaving her dog behind in the car and reasons that the air-conditioner was on during the drive to the store, so the car is not muggy or hot. At this point in her decision Mrs. Crawford locks the car and leaves for the store, confident that her decision was the right one. Suppose Mrs. Crawford is making good time in the store. She is almost done picking out everything on her list and is careful not to get sidetracked. However, Mrs. Bailey sees Mrs. Crawford in the aisle over and makes her way to talk to her about some important matters. Mrs. Crawford suddenly forgets about her need to complete her shopping trip in a timely manner. She forgets her dog is in the car, nor does she remember how hot it is outside because the store is well air-conditioned. Now Mrs. Crawford’s dog is still outside in the hot car, and because it is not properly ventilated or shaded the car quickly becomes extremely hot inside. The dog is soon unable to withstand the heat and becomes sick and passes out in the back seat before Mrs. Crawford returns from the store. When she returns, Mrs. Crawford is mortified. She had no idea that she had been talking to Mrs. Bailey for so long. She did not even think about her dog, or the possibility that leaving her dog unattended for as long as she did would result in its death. She quickly takes her dog to the vet. What can we understand about this scenario that is different from the original? With this new perspective, we can see that Mrs. Crawford was completely forgetful in the care of her dog. While she is a workaholic with a one-track mindset, her decision to bring her dog along seems out of the ordinary and not in line with her normal character traits. We can tell by this story that Mrs. Crawford values social relationships, which is why she stopped to talk to Mrs. Bailey, independence, which is why she went out to the store in the first place, and the well-being of others, hence her decision to leave her dog in the car. Did Mrs. Crawford have the capacity to change her course and make sure she took measures that would secure the safety of her dog? I believe so. She was not tired; she was not overcome with thoughts of work that would normally cause her to forget other obligations. She was distracted, but by something that she had the capacity to say no to. Here I would like to point out that Mrs. Crawford was in her right mind and within the right capacity to know that talking to Mrs. Bailey would disrupt her schedule of running errands. This change of schedule had the potential to possibly upset or cause extreme distress to her dog that she left in her car. Mrs. Crawford ought to have known that the dog in the car was the most precedent of her concerns. She knows that by moral standards her dog has moral worth and is a moral responsibility that she has tasked herself with. Mrs. Crawford is someone that knows the difference between morality and immorality, and she is fully aware that her dog has a right to life. By placing her own dog within harm's way, Mrs. Crawford showed not only ignorance of fact but moral ignorance as well. Since she did not know that she was possibly harming her dog by talking to Mrs. Bailey and staying within the store for an extra length of time. Mrs. Crawford would be considered morally blameworthy. She knew that her dog was in the car. Even though she may not have known that by leaving them in the car she was potentially endangering her animal, this shows moral ignorance because she did not consider her dog’s life to be worthy enough to take extended measures that would have ensured survival. From the capacitarian theory she is considered blameworthy, but considered innocent from the valuationist perspective. III. Capacitarianism and Valuationism are Two-Sides of the Same Coin: Before we start to cut deeper into each of the theories independently, I would like to point out that these vignettes show us how different theories about moral ignorance are more accurate attributions of blame, depending on how the story is told. The way an author prescribes a vignette will directly affect the way a reader chooses to apply a theory. The author’s choice to write objectively or subjectively will also affect whether a reader will approach the ignorant action with a mind of blame or exculpation. This mode of thinking is something we see in moral realism. There are two positions in moral realism that we might be able to categorize the capacitarian and valuationsist theories under. First, normative realism posits that ethical sentences describe positions that are grounded in objective features. Some of the objective features may only be true in that they report the descriptions accurately, such as “killing someone is bad”. These descriptions do not contain subjective opinions, which aids in their accuracy and helps to establish moral truths. Second, the version of metaethical realism that can be used to look at these theories states that, in principle, it is possible to know about the facts of actions that are right and wrong, and about which things are good and bad (Copp, 2007). This position depends on the subjective opinions of others to determine these aforementioned facts. Metaethical realism takes a more common-sense approach to ask questions like “should we reasonably expect someone to check the sugar dish before serving sugar?” The reason why we need to keep moral realism in mind while assessing capacitarianism and valuationism is because it directly affects our assessment of them. We can see that assessments about moral responsibility are sensitive to additions and omissions of information regarding capacities and values of the agents. With the incorporation of certain details about an agent’s past actions and value systems, a reader can be swayed to agree or disagree with certain theories of moral assessment. Certain details require someone to be objective or subjective in their interpretation of the events (Baumann, 2019). This can greatly affect how a story is understood by various readers. However the story is told, whether narrow or elaborate, the rationale behind omitting and adding detail will always have a direct effect on the reader’s intuition of the story. Depending on how the vignette is written, the reader can be manipulated to believe that certain events will result in one theory being more conclusive than another. What this shows us is that the philosophers who wrote the vignettes wrote them in a way to prove the point of their own theories. These vignettes function as intuition pumps. Anything the philosopher wants to say activates a reader’s intuitive approach to assessing a situation. While the capacitarian and valuationist theorists may focus on different characteristics of someone’s motivation, their approaches to assessments of moral responsibility are similar. Both look at the contexts in which the act was performed; however, they differ in which part of the context they think to be relevant in their assessments. Capacitarians consider the most relevant point of context of behavior and compare it to be the behavior leading up to the harmful act. The capacity of the agent is also dependent on their knowledge of their wrongdoing. Capacitarians ask whether or not agents could’ve done something differently in the past to prevent their immoral act from taking place. If they engage in a harmful immoral act, then it is a result of their ignorance. Whether to attribute blame to the agent who acted out of ignorance would depend on their capacity to know that there was some way they could have prevented themselves from doing so. If they did not have the capacity to know they were acting immorally, or that they could’ve prevented themselves from acting as such, then they would not be considered blameworthy. Thus, an agent acting out of ignorance without the capacity to know they are doing so would be morally exculpated. Valuationists choose not to look at the behaviors preceding the events and instead examine the value system of the agent. They do this because they think the value system of a person should be considered the relevant context of the moral assessment of an act (Arpaly, 2004). The community of moral theorists has situated these two theories in contexts of past actions or value systems. Up until this point, we have discussed these two theories independently, however, I would like to show how they are closely related. If a vignette focuses on the capacity or the value system of a person, then readers will be persuaded to agree with the theory that provides a better explanation of moral judgements concerning actions. For instance, the more detailed the information regarding the context of the agent, the easier it will be for us to apply a theory that best suits the framework. The information needs to highlight either the agent’s value system or the agent’s past actions. If the information in the vignette does not include any context for the reader, then it is natural for them to assume and fill it in themselves. The various assumptions that arise from different readers’ perspectives have the ability to lead to a deep disagreement about the moral assessments of actions. An under-described thought experiment gives you inconclusive information to fill in gaps that a narrow story leaves out. Without enough information, a reader must add their own information. When a reader substitutes the information missing in the vignette, it can pull people into a deep disagreement about the moral assessment of the agent. This makes it easy for a reader to feed into their own thoughts. A reader is then foolish for reading into the story what they hope to get out of it. This creates circular reasoning on the reader’s part. In all cases, different people will have different assumptions while reading the under-described thought experiment, which will inevitably lead to problems applying certain theories to each one. Unfortunately, there is no way to halt varying interpretations because it is unreasonable to expect anyone to be able to provide every possible angle that a situation can have. In other words, there is no way for the author to close the room for interpretation entirely. If a deep disagreement arises, then this must be a result of an author’s manipulation of the vignette. For a deep disagreement to form, the vignettes would need to have an unclear description of an agent’s past actions and capacity or an unclear description of their value system because this would pin the capacitarian and the valuationist standpoints against each other. When the contexts of the past actions and value systems are clear and detailed in a vignette, it is unlikely that a deep disagreement will occur. Rather than finding a clash of theories, the verdicts would be expected to converge due to their connection. Throughout this paper I have been providing a route to view the literature of moral assessment to show how the valuationist and the capacitarian approaches are in competition with each other. However, I think this view wrongly pins the two theories against each other. The values that a person has will manifest itself in their actions, likewise, their actions are guided by their values, whether consciously or unconsciously. When we lay out this connection, we can see how someone’s past actions and value system are actually connected. With that said, I think it would be in our best interest not to play the two against each other, and instead show they are dependent on one another. This holistic/detached perspective demonstrates how these two theories are two sides of the same coin. IV. Conclusion: The more a vignette spells out a history, the more we get a sense of the value system of the person involved. Any value system shapes how people perceive information and influences their decisions. This means it also influences their intuitions and builds peoples’ overall foundations for actions. How a person has acted up to the point of the scenario usually tells us the story of the person's value system. Here we get a better sense of how they would act in future situations based on how they have acted prior. If a vignette is written in detail, spelling out a person’s capacities, values, or both, then the competing theories proposed by valuationists and capacitarians will likely converge. However, if it's sparse with little to no information, then the two rival theories may clash. They will seemingly work against each other because the readers are left to fill in the details. Without an established history or value system described, readers do not have anything prescribing their thoughts. Clashing is due to the under-description of the vignette and not used to interpret theories. I think this is where a lot of the deep disagreement stems. In this conversation about the moral assessment of blame, we have two theories that are seemingly different but work in tandem. They have a great opportunity to change the way that we, as philosophers, attribute blame, especially since wishful thinking does not give moral valence. If readers can speculate the history and the potential for a person based on their capacity to potentially act out their value systems, then they will not need to speculate on what the author meant. After all, it is not the job of a reader to fill in the blanks, it is up to the author/philosopher to explain a thought experiment in full to establish their theory (Baumann, 2019). Any description that influences a perspective is an important factor, but we need to decide whether someone is or is not morally culpable in a particular situation. To do this, it is necessary to know all the past relevant information. Swapping things around, omitting necessary information, and changing the context to fit someone else’s narrative of events is not an effective way to correctively assess the morality of an agent, nor is it conducive to figuring out whether they are morally exculpable. Withholding information is one way to prevent knowledge, and if we are concerned with knowing whether someone has performed an immoral action, then the truth is of utmost importance (Baumann, 2019). This is the way things become known. When looking back at the argument between the valuationist and capacitarian, knowledge of the subject’s past is necessary for determining if someone should be considered morally blameworthy. For determining both a person’s capacities and values in the present, it is vital to investigate their past. A person’s past determines their values just as much as it determines their capacities. A person’s past values can be written off due to their present capacities; likewise, a person’s past capacities can be written off because of their present values. The present moment is a culmination of all the previous values an agent has upheld. Valuationists point out how a person’s values are a result of what they did or didn’t do in the past. These values are determined on the agent’s capacity to understand and act on those values. Similarly, capacitarians see capacities as manifestations of value systems. The key to finding out someone’s capacities and values is buried in their past. What is the difference between these two theories if they both require knowledge of the person’s past behavior? Are they distinct theories that have similar foundations, or are they two sides to the same theoretical coin? Since both theories require the past to determine their present conditions, it’s possible that proposing these two ideas as distinctly different theories does not hold up to scrutiny. This is because values are conditions that people think should be upheld and reinforced, while capacities are behaviors of what people are capable of doing. Values are conditions that people strive for, give people numerous filters for actions, and are considered valuable in the social world. Once someone has a set of values, their subsequent actions are determined. When capacitarians look at capacities of individuals, they are looking at what actions would have been expected to perform given their capabilities. These actions are expected to be performed because of individual values. This is where we see the two theories speaking a similar language. If we need to know as much information about an individual’s past to form a coherent judgment of blame, then it’s possible these two theories are derived from the same theoretical foundation grounded in the past. The past is important to these two theories as a person’s past actions are suggestive of their values, and the person’s past values are suggestive of what actions someone can do based on their capacities. At this point, to look further into this topic I think it is indispensable to ask, how do we know what someone’s past values or capacities are, and how can we tell if they have led to present conditions? References Aristotle. 2011. Nicomachean Ethics. Chicago: University of Chicago Press. Arpaly, N. 2004. Unprincipled Virtue: An Inquiry Into Moral Agency. Oxford: Oxford University Press. Baumann, M. 2019. "Consequentializing and Underdetermination" Australasian Journal of Philosophy , 511-527. Bernecker, S. 2011. The Epistemology of Fake News. Oxford: Oxford University Press. Biebel, N. 2017, October 12. Epistemic justification and the ignorance excuse. Retrieved from Springer Link: https://link.springer.com/article/10.1007%2Fs11098-017-0992-4 Copp, D. 2007. "Introduction: Metaethics and Normative Ethics" The Oxford Handbook of Ethical Theory . Harmen, E. 2011. "Does Moral Ignorance Exculpate?" Ratio, XXIV , 443-468. M. Alvarez, &. C. 2017. "When Ignorance is No Excuse" Responsibility: The Epistemic Condition , 1-24. Rosen, G. 2003. "Culpability and Ignorance" Proceedings of the Aristotelian Society, 103 , 61-84. Rosen, G. 2004. "Skepticism About Moral Responsibility" Philosophical Perspectives, 18 , 295-313. Sliwa, P. 2020. "Excuse without Exculpation: The Case of Moral Ignorance" Oxford Studies in Metaethics , 72-95.

Two Forms of Environmental-Political Imagination: Germany, the United States, and the Clean Energy Transition All Power to the Imagination Radical Student Groups and Coalition Building in France During May 1968 and the United States during the Vietnam War Calder McHugh Bowdoin College Author Alexis Biegen Sophia Carter Editors Fall 2019 Download full text PDF (26 pages) Abstract Student-led social movements in May of 1968 in France and through the late 1960s and early 1970s in the United States captured the attention of each nation at the time and have had a profound impact on how Americans and French understand their respective states today. Both movements held the lofty goal of completely reshaping their respective societal structures but the vast differences of the cultures in which they were carried out resulted in distinct end results. In France, student protests sparked mass mobilization of the nation and, at their height, were seen by most of the country in a positive light. The broader movement that involved worker participation as well also won material gains for workers in the nation. Across the Atlantic, on the other hand, student protests were met with mostly ill will from the American working class. This work will particularly focus on the ways in which a history of strikes and a popular Communist Party in France both allowed for mass mobilization and stopped the students from pursuing more radical change. It will also work to challenge dominant narratives in political science around coalition building. I. In mid-May, 1968, as 10 million people marched in demonstration through the streets of every major French city, student leader Daniel Cohn-Bendit sat down for a wide-ranging interview with philosopher Jean-Paul Sartre. Bendit cogently articulated his goals for the student movement as well as its potential challenges. “The aim is now the overthrow of the regime,” he said. “But it is not up to us whether or not this is achieved. If the Communist Party, the [general confederation of labor union] CGT and the other union headquarters shared it… the regime would fall within a fortnight.” Six years later and across the Atlantic Ocean, the Weather Underground, a militant leftist organization in its fifth year of operation which was composed of young radicals, published a book entitled Prairie Fire: The Politics of Revolutionary Anti-Imperialism. The Weather Underground wrote, “Our intention is to disrupt the empire… to incapacitate it, to put pressure on the cracks, to make it hard to carry out its bloody functioning against the people of the world, to join the world struggle, to attack from the inside.” II. Radical social movements aimed at the overthrow of capitalism and capitalist-based governments existed throughout the Western world through the late 1960s and early 1970s. In Italy, West Germany, France, and the United States, these movements were particularly wide ranging and distinctly impacted each society, causing momentous political and cultural upheaval. This work will focus on the latter two nations. The mass mobilization that shook France was confined largely to one month: May, 1968. In the middle of March, France’s leading newspaper Le Monde called France’s citizens too “bored” to protest in the same manner that was occurring in West Germany and the United States. A mere six weeks later, after the occupation of the University of Nanterre on March 22nd sparked conversation about collective action around the country, French students occupied the University of Paris at the Sorbonne, in the Latin Quarter of Paris, sparking nightly clashes with the police. Streets were barricaded, all transportation was shut down, and worker mobilization reached a height of 10 million on strike. Notably, students’ grievances were separate from those of the workers. The students rallied around a popular slogan of the time, “all power to the imagination,” which captured their collective interest in enacting changes to the educational system that would allow for a more free and accepting university structure. Comprised of Trotskyites, Maoists, anarchists, and others on the Left, many also believed in the violent overthrow of the 5th Republic of France and the complete reshaping of society. As Suzanne Borde, who in May, 1968 had recently left her childhood home for Paris, said, “Everything changed [in May, 68], my way of thinking, everything… My favorite expression at the time was “La Vie, Vite” (Life, Quickly)! I wanted to change the usual way of life.” The workers, who made up the lion’s share of the protestors but had fewer public clashes with the police, were concerned less with political ideology or societal restructuring than with material gains that would make their lives better, such as wage increases. Their protests ran in conjunction with the students’, but their union was a tenuous one: the French Communist Party (PCF) and its associated labor union Confédération Général du Travail (CGT) controlled much of the political action amongst the workers and was deeply suspicious of the goals of the student movement from its nascent stages. Ultimately, two central events led to the movement’s demise. Maybe ironically, the first was originally interpreted as a success: the protests led to governmental upheaval and President Charles de Gaulle’s temporary departure from the country. After weeks of uncertainty, representatives of de Gaulle’s government negotiated what came to be termed the Grenelle Agreements with the leadership of the CGT. Resulting in more bargaining power for unions as well as a 35 percent minimum wage increase and a 10 percent increase in average real wages, these concessions pacified many workers, leading them back to the factory floor. Second, upon returning to the country on May 30, Charles de Gaulle organized a significant counter-protest on the Champs-Elysees, dissolved the legislature and called for new legislative elections that took place in late June. De Gaulle’s party, the Union of Democrats for the Republic (UDR) won a massive victory and went back to being firmly in control of the nation, while the PCF lost more than half of their seats. Social protest in the United States was not so neatly circumscribed into a few months. Anti-Vietnam War protests took many shapes over numerous years. For the purposes of this work, analysis will be confined to the Students for a Democratic Society (SDS) organization, its offshoot groups, and their respective impacts on the broader movement. Launched with the Port Huron Statement in 1962 before the official beginning of the American War in Vietnam in 1965, the organization purposefully did not couch its goals in traditionally communist or Marxist rhetoric, because unlike in France, there was no appetite for it in the United States. Rather, they argued quite persuasively, “We are people of this generation, bred in at least moderate comfort, housed now in universities, looking uncomfortably to the world we inherit.” While fewer than 100 people signed the Port Huron Statement, by 1965, the SDS organized the “March on Washington to End the War in Vietnam,” which 15,000 to 25,000 people from around the country attended. This march both attracted a degree of attention and trained future organizers of better-coordinated marches on Washington, including the November, 1969 Moratorium March on Washington, which had over 250,000 attendees. While SDS remained a strong political force through the late 1960s, by its 1969 convention in Chicago the group had moved significantly to the left ideologically and had developed political differences amongst itself that detached it from the unified spirit of the Port Huron Statement. As SDS gathered in Chicago, by the end of the weekend of June 18-22, three separate factions had emerged. One, calling itself the Progressive Labor Party (PL), argued for Maoist and worker-oriented solutions to what they perceived as the ills of America. Another, the Revolutionary Youth Movement (RYM), became the foundation of what was eventually called the Weather Underground—they advocated for a radicalization of SDS to fight American imperialism alongside the Black Panthers and revolutionary groups around the world. Finally, the Revolutionary Youth Movement II (RYM II) agreed with RYM on most substantive issues, but believed in a more traditional Marxist approach to solve them. According to sociologist Penny Lewis, none of these groups, including the PL whose entire revolutionary strategy was based on cross-class alliance with workers, enjoyed any significant support from the working class. She writes, “The obvious reason for this was the near-unanimous embrace of Cold War anticommunism in the ranks of labor and the collapse of Communist Party influence within the class.” Left without the possibility of even a tenuous connection between young radicals and the broad working class, the Weather Underground began to participate in militant action to attempt to bring the Vietnam war home. In March of 1970, Weather Underground member Bernardine Dohrn anonymously recorded a transmission and sent it to a California radio station on behalf of the group. She warned, “The lines are drawn… Revolution is touching all of our lives. Freaks are revolutionaries and revolutionaries are freaks… within the next 14 days we will bomb a major U.S. institution.” While her timeline was a bit optimistic, the group bombed the Capitol in March of 1971 and the Pentagon in May of 1972, all the while intending not to injure anyone (these two actions had no deaths associated). Their most famous (and infamous) deed was an accident—also in March of 1970, two members (Diana Oughton and Terry Robbins) accidentally detonated a bomb in a Greenwich Village townhouse while assembling homemade explosives, killing themselves and a third “Weatherman” who was walking into the house (Ted Gold). The Weather Underground did continue action after the conclusion of American involvement in Vietnam in 1975, but paired down much of its more violent activities. The group, whose members found their way to the FBI’s Most Wanted List, eventually disbanded; many now work as professors, educating and informing new generations of American thought. III. The outgrowth of the fragile connection between student protest and worker protest in France, as well as the lack of any significant worker mobilization in the United States, has a lot to do with the way each nation developed in the wake of World War II. During the altercations in May, 1968 in France, President Charles de Gaulle and the PCF represented two opposing poles of influence. This, in many ways, defined the conflict: de Gaulle’s fairly centrist (by modern standards) regime was forced to contend with a popular Communist Party facing a radical push from student activists combined with a wellspring of support from French workers. Interestingly, both De Gaulle and the Communists found much of their legitimacy from their actions a quarter-century prior, during World War II. De Gaulle and his supporters, along with the PCF, were the two most significant resistance forces to the collaborationist Vichy government. As such, in the first legislative election after the War in 1945, the PCF won a plurality of the vote, with 26.1 percent, and controlled the most seats in the legislature. De Gaulle did not participate in these elections. By 1967, while the PCF’s support had diminished, it remained a powerful force: they held 21.37 percent of the vote, a slight drop, but were able to build a governing coalition with fellow Leftist parties Federation of the Democratic and Socialist Left (FGDS) and the Unified Socialist Party (PSU). Together, the three received 53.43 percent of the vote. The revolution in 1968, then, did not come out of nowhere. Not only could the PCF count on at least 20 percent of France’s support throughout the 1950s and 60s, it also organized strikes. Significant agrarian protests led by the PCF occurred in 1959 and 1960, and in 1963 strikes reached a zenith of the era before 1968, as the number of days that workers were on strike was the highest in 10 years. As Kenneth Libbey, who is both a scholar of and an advocate for the PCF, argues, “the belief in the ability of a mass movement to sweep aside obstacles to its success is a dominant theme of the party. Its acceptance makes the arguments about the transition to socialism at least plausible.” By May of 1968, significant differences existed between the often anarchist, Maoist, or Trotskyite student groups and the Stalinist PCF and CGT. However, these disagreements on ideology were not significant enough to halt the cross-coalitional movement—at least at first. In the case of Leftist groups in the United States, whether they marched under the Maoist banner of coalition-building with the working class (in the case of the PL movement) or had more anarchist tendencies as well as interest in engaging with black revolutionary groups such as the Black Panthers (in the case of the Weather Underground), they had very little historical precedent or organizational support upon which to draw. Even at its relative peak in 1944, the Communist Party in the United States (CPUSA) only had a confirmed membership of 80,000. In the context of the Cold War, it became impossible to be an avowed Communist in public life. In a period often called the “Second Red Scare” or “McCarthyism,” the United States Congress convened the House Un-American Activities Committee (HUAC) in order to attempt to find and punish Communists whom they believed to be working for the Soviet Union. In 1954, the United States government formally outlawed the CPUSA. While in the French case the Communist Party was associated with brave resistance to World War II, politicians in the United States were able to successfully present the CPUSA as a subversive group intent on aiding the Russians in the Cold War. As an ideology, McCarthyism faded through the 1950s and was eventually seen for what it was: a witch-hunt. However, in the Cold War context, a genuine Communist Party in the United States would have been something of an anachronism at best. Thus, radicals in the United States had to both divorce themselves from any extremely weak institutions that did exist and strive to create their own culture and identity. The divergent histories of France and the United States shaped not only the popularity of social movements in the late 1960s, but also the strategies and tactics employed by student radicals in both nations. IV. A shared characteristic of the radical students in France and the United States was their distaste for slow-moving, marginal improvements. In fact, French radical students had been preaching this ideology since the early 1960s. Trotskyite dissidents, many of whom were engaged in the leadership of the 1968 movement, submitted a manifesto to the socialist publication Socialisme ou Barbarie in 1961 outlining many of the same principles as the Weather Underground did eight years later. They argued, “One hundred and fifty years of ‘progress’ and ‘democracy’ have proved that no matter what reforms are applied to the capitalist system they will not change the real situation of the worker.” As is typical of the French case, revolutionary politics are more wrapped up in the labor movement than in the United States. The manifesto continues, “The workers will not be free of oppression and exploitation until their struggles have resulted in setting up a really socialistic society, in which workers’ councils will have all the power, and both production and economic planning will be under worker management.” Fredy Perlman, a student who aided in the shutdown of the Censier Annex of the Sorbonne, believed in a direct connection between the actions at the Universities and the larger strikes. He saw the main contribution of the students at the Censier to be the formation of worker-student action committees, in which the two groups coordinated actions together. Perlman, who published a booklet entitled Worker-student Action Committees, France, 1968 in 1970, wrote, “The formation of the worker-student committees coincides with the outbreak of a wildcat strike: ‘In the style of the student demonstrators, the workers of Sud-Aviation have occupied the factory at Nantes.” For Alain Krivine, the founder of one of the most influential activist groups for youth during 1968, Jeunesse Communiste Révolutionnaire, increased rights for workers were essential to the success of the movement. However, he did not believe that leaders of the unions or the Communist Party best represented the workers’ interests. He says, “For me [leftwing political leaders Pierre] Mendès-France and [François] Mitterand were shit… Mendès-France and Mitterand could be an alternative, but for us it was a bad one.” Student demonstrator Isabelle Saint-Saëns largely agrees. “When we marched with the workers we felt united with them, but it remained theoretical as well,” she said. Nevertheless, the students did see the workers as the key to their success, because they were willing to mobilize and they held such tremendous political power because of their sheer numbers. As opposed to the situation in France, protest in the United States was based largely around denouncing the imperialism inherent within the conflict in Vietnam. In the shadow of the SDS convention in June of 1969, student radicals who formed the leadership of the splinter group of the Weather Underground sprang into action. Leadership of the organization included many young radicals who had been involved in the demonstrations against the Vietnam War at Columbia University the year before, including Bill Ayers, Bernardine Dohrn, and Mark Rudd, who famously wrote in a letter to Columbia President Grayson Kirk: “You call for order and respect for authority; we call for justice, freedom, and socialism. There is only one thing left to say. It may sound nihilistic to you, since it is the opening shot in a war of liberation. I’ll use the words of LeRoi Jones, whom I’m sure you don’t like a whole lot: ‘Up against the wall, motherfucker, this is a stick-up.’” The Weather Underground’s first major action,termed the “Days of Rage,” was scheduled to take place from October 8-11, 1969 in the streets of Chicago. The action’s specific purpose was to protest the trial of the “Chicago Eight,” a group on trial for antiwar activism during the 1968 Democratic National Convention. While they hoped for the participation of around 50,000 militants they got only a few hundred. The action, which included the looting and burning of downtown Chicago appeared not to have a particularly cogent mission, was panned by the mainstream media, but also by many fellow Leftist organizations, who argued that the organizers were alienating the broader public from their cause. The Weather Underground itself, though, argued that the “Days of Rage” were part of a larger effort to “bring the war home.” At this point in the antiwar fight, the Weather Underground had decided that they could not count on the participation of workers because of their lack of any significant socialist or communist sympathies. As such, they planned demonstrations and militant actions to raise the consciousness of the greater populace to the horrors of the war abroad. Friends and siblings who were drafted, sent to Vietnam, and often killed in action particularly galvanized American youth. Partially to announce the formation of the Weather Underground, the group released a manifesto entitled “You Don’t Need A Weatherman To Know Which Way The Wind Blows.” A subsection of this argument, “Anti-Imperialist Revolution and the United Front,” states, “Defeating imperialism within the US couldn’t possibly have the content, which it could in a semi-feudal country, of replacing imperialism with capitalism or new democracy; when imperialism is defeated in the US, it will be replaced by socialism- nothing else. One revolution, one replacement process, one seizure of state power- the anti-imperialist revolution and the socialist revolution, one and the same stage.” Student radicals in the United States saw the need to engender violent revolution in order to move to a state willing to accept socialism as a rational political ideology. The stated aims of the two movements, then, were quite similar. Each believed that their government was not truly democratic, and that there was a distinct need to expel the ruling elite from power. The two groups framed the issue using a shared language of the Left that dealt primarily with expressing solidarity with the oppressed. Divergence in the movements appeared in each group’s understanding of their own role in society. In France, while students were suspicious and sometimes downright dismissive of the PCF and the CGT, they believed they needed the participation of the workers (many of whom were members of those organizations) to succeed. The split at the SDS convention in June of 1969, on the other hand, further alienated the Weather Underground even from fellow Leftist organizations. While the Weather Underground hoped to gain more support for its cause amongst the general populace, the group also understood the nature of the political system in the United States and made the conscious decision to exist outside of it. In “You Don’t Need a Weatherman…” they wrote, “How will we accomplish the building of [a Marxist-Leninist Party]- It is clear that we couldn’t somehow form such a party at this time, because the conditions for it do not exist in this country outside the Black Nation.” Much of the reason for both the divergent outcomes as well as the divergent tactics and framing of the student movements in France and the United States have to do with the political opportunity structures that existed in each nation during the late 1960s. These are broadly rooted in the historical differences in the treatment of Communism as an ideology in both nations. V. Many scholars have argued that the character of the revolution of May 1968 was defined by the youth and, to a lesser degree, intellectuals in the nation. Maybe more important for mass mobilization in France, though, was the history of strikes in the nation. According to French historian Stéphane Sirot, while in other nations strikes are often the result of failed negotiations, in France they frequently occur either during or before negotiations with labor bosses. Strikes are such successful tactics of negotiation because they work on two levels. First, they have an offense element through mass demonstrations that attract the attention of the media. Second, they work defensively in that by refusing to work, they put pressure on bosses to find a quick solution. In their paper, “The Shape of Strikes in France, 1830-1960,” published in 1971, scholars Edward Shorter and Charles Tilly argue that French strikes, while fairly prevalent throughout this period, changed fairly significantly in character in this time period. This, according to Shorter and Tilly, has largely to do with the significant expansion of industrial unionism at the end of the 1930s around the European continent. They use measurements of size, duration, and frequency to calculate the shape that these strikes took. Below is an example of their model: Table 1.1 This table shows two distinct strike scenarios. What Shorter and Tilly refer to as “Industry X” represents a scenario in which strikes are long but small and occur fairly infrequently. “Industry Y” has strikes that occur more frequently and with a larger size, but do not last for as long. By the 1960s in France, the model for strikes looked quite a bit more like “Industry Y” than “Industry X.” Below is, once again, Shorter and Tilly’s graphic explanation of this phenomenon, based on the historical cataloguing of strikes: Table 1.2 This is significant in that massive, short demonstrations, while not necessarily more successful than those that are smaller and play out over a longer period of time, are wont to receive more attention from the public and the media due to their dramatic nature. The sheer mass of strikes through the 1960s made it easier for workers to mobilize around issues that ran adjacent to the concerns of the students, such as rights to self-management in any workplace, but were certainly not the same. Conversely, in the United States before 1968 there were few examples of large scale strikes. Other than the steel workers’ strike in 1959, which included around half a million participants, frequent general strikes had not existed in the nation since the 19th Century. Additionally, while union activity was certainly stronger in the 1960s in the United States than it is today, the protests of the 1960s were more focused on the antiwar effort than the rights of workers. VI. Likely due at least partially to their comfort with general strikes and mass mobilization, the French populace largely supported the students and their efforts to protest, expressing ire for the police force when they clashed. On May 10, 1968, in what has since been termed the “night of the barricades” (because of barriers that students constructed to slow down police), French police and students clashed violently in the streets of Paris. 80 percent of Parisians, though, supported the students and believed fault in escalating the violence lay with the police. Nevertheless, cultural differences between the youth and both the ruling class and worker allies persisted in France as well, which manifested themselves in the priorities of the students. Before the revolution of 1968, the French schooling system was extremely restrictive. Students could not voice their own ideas in the classroom and the gender and sexual politics of the university were also extremely conservative—men and women were often divided. Thus, in considering how all of French society should change, the University system was at the front of many students’ minds. As Perlman argued about the revolutionary movement, “What begins [when the Universities are occupied] is a process of collective learning; the "university," perhaps for the first time, becomes a place for learning. People do not only learn the information, the ideas, the projects of others; they also learn from the example of others that they have specific information to contribute, that they are able to express ideas, that they can initiate projects. There are no longer specialists or experts; the division between thinkers and doers, between students and workers, breaks down. At this point all are students.” As might be expected, while many supported the broad protests of the students and their right to do so, concepts like the total change in University structure, for which Perlman argued, were less popular or important to much of French society. Thus, the French students created their own political ideology and culture that was often separate from that of the more institutionalized labor movements. However, while their culture and their priorities often separated them from the workers, the French students also believed the workers to be necessary to their success. When the Grenelle Accords were signed and a majority of the workers agreed to go back to work, students quickly demobilized. As scholar Mitchell Abidor argues in the introduction to his oral history May made me, “For the workers, it was not the qualitative demands of the students that mattered, but their own quantitative, bread-and-butter issues.” Ultimately, French students were incapable of understanding or accepting this. Abidor continues, “The ouvriérisme—the workerism—so strong on the French left led the students to think the workers were the motor of any revolution, which left the vehicle immobile because the engine was dead.” So, after the workers returned to work, the students also quite quickly demobilized. The alliance between the students and the workers in France was further complicated by the students’ tenuous relationship to the PCF and CGT, organizations which were active participants in the society that students were striving to upend. The PCF and CGT, naturally concerned with their parties’ success, framed their arguments and made agreements based on the existing political opportunity structure in France. Many student radicals, on the other hand, saw it as their charge to revise those very structures. The PCF was thus forced to walk a fine line between maintaining its own institutional legitimacy and representing the more revolutionary elements of its own party. According to Libbey, French Professor Georges Lavau thus argues, “[the PCF] has assumed the role of tribune: articulating the grievances of discontented groups as well as defending the gains of the workers against attempts by the bourgeoisie to undermine them. The PCF has thus become a legitimate channel for protest, protecting the system from more destructive outbursts. This protection failed in 1968, of course, but Lavau contends that the party’s role of tribune nonetheless coloured its response to the crisis.” Lavau and Libbey’s contention that the PCF lost the role of tribune in May of 1968 is worth noting because although the CFDT and the CGT were the ones to negotiate with de Gaulle’s government, they had lost control of the situation. They were able, ultimately, to demobilize the workers, but they lost significant support, which showed in the elections of June, 1968 where they lost half of their seats. The Grenelle Accords in many ways crystallized the differences between the gauchiste students and the institutionalized, Stalinist political parties. These differences, which existed throughout the movement, were momentarily put aside as everyone took to the streets. After most workers returned to the factory floor, though, student radicals, as well as radical elements within the Communist Party, discussed their disappointment with the limited scope of the Grenelle Accords. Prisca Bachelet, who was helped to organize the nascent stages of the movement during demonstrations at the University of Nanterre on March 22, 1968, said of the leaders of the CGT, “they were afraid, afraid of responsibility.” Éric Hazan, who was a cardiac surgeon and a radical Party member during 1968, argued the Communists’ actions at the end of May and their negotiations with the government amounted to “Treason. Normal. A normal treason.” Student Jean-Pierre Vernant argued, “The May crisis is not explained and is not analyzed [by the Party]. It is erased.” The students and their allies had good reason for frustration. They believed the Party theoretically meant to represent them betrayed many of the principles for which they were fighting. Members of the Communist Party also quite obviously held distaste for many of the student radicals. In a very obvious reference to the student movement, Communist Party leader Roland Leroy said at the National Assembly on May 21, 1968, “The Communists are not anarchists whose program tends to destroying everything without building anything.” For their part, the students’ significant miscalculation, was that they believed Party leaders like Leroy did not speak for the interests of the workers. Hélène Chatroussat, a Trotskyite, argued at the time, “I said to myself, [the workers] are many, they’re with us… so why don’t they tell the Stalinists [the PCF] to get lost so we could come in and they could join us?” To the contrary, many of the workers who went on strike in the factories were uninterested in broader political change or politics in general. They simple hoped for a positive change to their material conditions. As Colette Danappe, a worker in a factory outside Paris, told Mitchell Abidor, “The students were more interested in fighting, they were interested in politics, and that wasn’t for us.” Danappe continued about the Grenelle Accords, “We got almost everything we wanted and almost everyone voted to return… Maybe we were a little happier, because we had more money. We were able to travel afterwards.” At first glance, it would appear that the situation in the United States and the goals of antiwar demonstrators would have made it easier to mobilize a broader cross-section of the population. By mid-May of 1971, 61% of Americans responded “Yes, a mistake” to the Gallup poll question, “In view of developments since we entered the fighting in Vietnam, do you think the U.S. made a mistake in sending troops to fight in Vietnam?” However, a larger segment of the older population in the United States was against the war than the younger generation. These older Americans did not support the war, but largely did not support protest movements either. The lasting images of social movements in the United States in the 1960s all include what came to be referred to as “the counterculture.” The counterculture is depicted, stereotypically, as young men and women with flowers in their hair, listening to Creedence Clearwater Revival, and holding radical aspirations for the dawn of a new age in America. This group was generally maligned by significant portions of older generations of Americans in particular, who believed the youth movement to be related more to drug use than to any serious concern. While the counterculture’s goals of promoting peace and community were in many ways quite sincere, with the fear of the draft adding to their outrage, an older generation of Americans refused to take their style of protest seriously. Table 1.3 This table explains mobilization. The situation in France in May of 1968 can be found in the bottom-right box: the broad-based grievances of students were largely supported and they found political allies in the labor and Communist parties. In the United States, mass mobilization did not occur on the same scale, because although the popularity of the grievance was high (as support for the American War in Vietnam was low), no significant political allies (who could have been found in the older generation of anti-war Americans) existed. This situation can be found in the top-right box. This disdain for the youth movement was made obvious in the way that Walter Cronkite and Dan Rather covered clashes at the 1968 Democratic National Convention in Chicago. Members of the counterculture movement, calling themselves “Yippies” (included in this group were many members of the SDS), descended onto Chicago to protest the Vietnam War and the lack of democracy inside the Democratic Party’s presidential nomination selection. Cronkite had already argued on air that the Vietnam War had become unwinnable, but when he and Rather covered the 1968 DNC together, their attention was focused on normative politics as a whole—and they quite obviously had very little respect for the protestors. Each argued that it was the Yippies who provoked a bloody confrontation with the police, with Rather stating that, “Mayor Richard Daly vowed to keep it peaceful, even if it took force to keep the peace. He was backed by 12,000 police, 5,000 national guardsmen, and 7,500 regular army troops. But the Yippies succeeded—they got their confrontation.” Through the 1960s, many protest and counter-culture groups (including the Student Nonviolent Coordinating Committee, Americans for Democratic Action, and Vietnam Veterans Against the War, to name a few) created and sustained significant cultural differences from much of American society. Members of the Weather Underground, despite some of their uniquely militant positions, dressed and spoke in a language that was common to the broader counterculture movement. They did so largely because they felt themselves unable to work within the boundaries of a political system that, even on the left, did not come close to representing their political ideology. In forming their own cultural identity, Leftist groups in the United States did manage to catch the attention of the masses, even if that attention was largely negative. In this way, their issues and demands were placed at the center of the conversation, causing a fraught societal debate. VII. The legacies of the social movements of the late 1960s in the United States and France are hotly debated. Historian Tony Judt, holding an unmistakable disdain for the student movement in France, wrote, “It is symptomatic of the fundamentally apolitical mood of May 1968 that the best-selling books on the subject a generation later are not serious works of historical analysis, much less the earnest doctrinal tracts of the time, but collections of contemporary graffiti and slogans. Culled from the walls, noticeboards and streets of the city, these witty one-liners encourage young people to make love, have fun, mock those in authority, generally do what feels good—and change the world almost as a by-product… This was to be a victimless revolution, which in the end meant it was no sort of revolution at all.” On the other hand, scholar Simon Tormey wrote about the events of May of 1968, “1968 represented a freeing up of politics from the congealed, stodgy and unimaginative understandings that had so dogged the emergence of an oppositional politics after the second world war. It unleashed a wave of joyous experimentation, evanescent and spontaneous efforts to challenge the dull routine of the repetitious lives that had been constructed in and through advanced capitalism.” As we can see, this duality of point-of-view about revolutionary movements existed both in France and the United States. While the Weather Underground, without any significant political allies and carrying a negative media portrayal from the press, has mostly been portrayed negatively in the years since, some scholars believe that they altered a broader American consciousness. As Arthur Eckstein writes, “Thousands of New Leftists agreed with the Weathermen’s analysis of what had gone awry in America… the last 50 years have seen remarkable progress in black rights, women’s rights, gay rights, Hispanic and Asian rights… Weatherman’s violence... did not impede that progress.” Although Eckstein certainly does not offer a ringing endorsement of their militant tendencies, he does argue here that the group spawned social progress in a way that they did not expect they would. Interestingly enough, these more positive interpretations from historians and political scientists contradict the feelings of the student radicals themselves. Neither group had an exact moment of demobilization, but it became increasingly clear to young leaders throughout the early 1970s that they had not fomented the change for which they had hoped. In France especially, a growing frustration existed towards the Communist Party and its Labor wing, which points quite obviously to the dangers of coalition building. Students’ purported political allies came to be thought of as traitors by many of the student radicals. These frustrations and divisions that were born in 1968 proceeded, if not directly led, to the French Communist Party’s long slide into irrelevance during the 1970s and 80s, as Abidor argues. He writes, “Once it lost the PCF as the mediating force to represent its grievances, the French working class fulfilled Herbert Marcuse’s 1972 warning that “The immediate expression of the opinion and will of the workers, farmers, neighbors—in brief, the people—is not, per se, progressive and a force of social change: it may be the opposite.” The PCF understood this latent conservatism in the working class of 1968. Not so the New Left student movement.” The coalition was successful very briefly in May and resulted in positive material gains for workers—through pay raises, France became a little bit more equal. The most significant legacies of movements in France and the United States, though, were separate from any coalition. The French and the American students, each galvanized to be part of the revolutionary vanguard and inspired to change their societies, felt a deep sense of disappointment after the events of the late 1960s. Broken alliances and dashed goals led to the perception that they had let themselves and their ideals down. Measured this way, revolution failed, and Judt is right to argue that in this context, “it was no sort of revolution at all.” A middle ground perspective is well-explained by May ’68 protestor Suzanne Borde, who noted, “It made it possible to change the way children were educated, leading many teachers to reflect and to teach differently. Experimental schools opened... But it had no consequences on political life and failed to changed anything real.” Holding a completely different interpretation of the outcome, Maguy Alvarez, an English teacher in France, told New York Times journalist Alissa Rubin, “Everything was enlarged by 1968; it determined all my life.” Rubin titled the article “May 1968: A Month of Revolution Pushed France Into the Modern World.” So, maybe “these witty one-liners [that encouraged] young people to make love, have fun, mock those in authority, generally do what feels good,” did change France as a byproduct. The kicker of Alvarez’s quote is that she told it to Rubin not as she was deeply examining the political consequences of the era, but as she was walking through an exhibition of posters and artworks from the period. During his interview with Borde, Abidor noted towards the end of the discussion, “May ’68 didn’t result in anything concrete, then.” Borde responded, “Sure it did. It completely changed the way I live.” VIII. Much of the existing literature in the field of social movement theory is concerned with the ways in which social groups successfully frame their movements to a broader public in order to increase popular support, political allies, and best take advantage of existing political opportunity structures. This work, although not formatted with a traditional structure of similar systems design, is concerned with the comparison of a social movement that attempts to tap into public support (French student movement) with another that appears to at times actively avoid building coalitions (the Weather Underground). More than anything else, the historical differences in France and the United States led to vastly different political opportunity structures for each social movement in the late 1960s. Yet neither group compromised their idealistic political ideology, and for this reason both groups failed to achieve their ultimate goals. Nevertheless, both did change cultural aspects of the societies in which they operated. The conclusion of these movements’ cultural success, despite their political failure, challenges existing social movement literature that argues that successful social movements should attempt always to build broad support. French student radicals found cultural success not because of their coalition with the working class but often despite it. In the United States, much of the lasting memory of the SDS occurred after it split into the Weather Underground. Certainly, a degree of this remembrance is negative—French student radicals with their “power to the imagination” are remembered in a much rosier light than the Weather Underground, which is often considered a terrorist organization in the United States. However, the Weather Underground and its writings continue to inspire generations of young activists, who do not necessarily ascribe to their militant tactics but are inspired by its political ideology. Coalition building can without a doubt aid in the success of a social movement. However, it can also at times minimize its impact. As we examine these two distinct approaches to creating change, our analysis shows that coalition building might support the historical imagination, but it can hinder change. IX. Since the financial crisis of 2008, questions of the value of coalition building have continued to roil activists, in particular in the United States, which precipitated the 2008 global financial crisis and now exists in a period of unstable economic and political development that scholars have called a “crisis of neoliberalism.” Current social protest movements have faced some of the same issues confronting protestors in the 1960s and early 1970s—the Occupy Wall Street movement presents a worthy case study. In many respects, the Occupy movement is the closest analog in recent history to the May 1968 movement in France. Sparked by young people, the protests were concerned with income inequality and were able to create an entirely new language to talk about money in this country through popular slogans—“we are the 99%.” Branding itself a revolutionary movement, Occupy eschewed traditional leadership structures and declared an “occupation of New York City” on September 29, 2011 which resulted in a series of clashes with the police and ended in the protestors being forced out of their home base of Zuccotti Park on November 15 of the same year. Protests continued for months afterwards around the world, but did not maintain the same sort of zeal as they did in September, October, and November of 2011. While the Occupy movement quickly burned and petered out in a similar way to May 68, its results are of a somewhat different character than those in France and are thus worth examining here. Most significantly, the United States government was never forced to come to the bargaining table with Occupy, and their leaderless movement has been criticized for never laying out concrete demands. Additionally, though, the amorphous nature of the group allowed it to buck trends of significant splintering along ideological lines—post-Occupy activism has simply dispersed to campaigns like #AbolishICE and protesting the Keystone XL Pipeline. Its greatest success has likely been the proliferation of discussion of income inequality in the United States, which has led to campaigns for an increased minimum wage. However, in a similar way to the student protestors in France, questions remain as to whether “we are the 99%” has been honored or coopted. Hillary Clinton launched her 2016 presidential campaign in Iowa with the statement “the deck is still stacked in favor of those at the top.” Ted Cruz highlighted in the lead-up to 2016 “the top 1% earn a higher share of our income nationally than any year since 1928” and Jeb Bush said “the income gap is real.” The rhetoric is well and good, but each of these politicians has, according to Occupy, aided in the widening of this gap. There are positive messaging lessons to be learned from the Occupy movement for other protest groups, but in many respects Occupy lost control of the narrative—the shrinking 1% now speaks for the 99%. Bibliography: Abidor, Mitchell. May made me: an oral history of the 1968 uprising in France. Chico: AK Press, 2018. Abidor, Mitchell. “1968: When the Communist Party Stopped a French Revolution.” New York Review of Books. April 19, 2018. https://www.nybooks.com/daily/2018/04/19/ . 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Neti Linzer Can Pascal Convert the Libertine? An Analysis of the Evaluative Commitment Entailed by Pascal's Wager Neti Linzer While Pascal’s wager is commonly approached as a stand-alone decision theoretic problem, there is also a crucial evaluative component to his argument that adds oft-overlooked complexities. Though we can formulate a response to these challenges by drawing on other sections of the Pensées, an examination of an argument from Walter Kaufmann highlights enduring difficulties with this response, leading to the conclusion that Pascal lacks the resources to convincingly appeal to the libertine’s self-interest. I. Introduction Pascal’s wager, an argument due to the 17th-century mathematician and philosopher, Blaise Pascal, is generally analyzed as a self-contained, formalizable problem, embodying one of the first applications of decision theory (1). In short, it calculates the expected utility of believing in God against that of not believing, and concludes that, inasmuch as rationality entails maximizing expected utility, i.e. making the decision that will most likely lead to the most preferable outcome, it is rational for us to believe in God (2). This is a “wager” insofar as we cannot know with certainty that God exists, and the most we can do is gamble on the fact that He does. But what I will argue is that the wager argument presupposes a certain evaluative commitment, which Pascal’s targeted audience, the ‘libertine,’ notably lacks (3). The libertine is someone who does not believe in God, and whose value system is instead oriented towards earthly, bodily, happiness. I claim that for someone thus constituted, Pascal’s wager fails to be convincing. The wager, however, is only one part of Pascal’s never-finished apologetic project, the preliminary notes of which are organized in the Pensées, meaning ‘Thoughts.’ I will show that if we examine some of the other arguments Pascal makes throughout the Pensées, then we can formulate a response to this objection on Pascal’s behalf. As Pascal describes her, the libertine is deeply unhappy when she thinks about the contingencies of the human condition, and she therefore values activities which entertain her and divert her from these disturbing thoughts. In his description of the libertine’s condition, Pascal p erforms something of a Nietzschean style ‘revaluation’ of this approach to life: it includes a destructive phase—in which Pascal argues that the libertine’s values are based on false p resuppositions—followed by a constructive phase—in which Pascal presents the libertine with a more attractive evaluative framework. Once she is in this new cognitive space, the libertine is p repared to be persuaded by the wager. I argue, however, that inasmuch as there are alternative ways for the libertine to revalue her mortality, Pascal fails to make an argument that will necessarily appeal to her self-interest. Drawing on the work of the 20th-century philosopher Walter Kaufmann, I argue that the libertine can instead revalue her mortality by embracing it, by recognizing the way in which the fact of her death is precisely what makes her life worthwhile. And while Kaufman’s approach certainly might also fail to be convincing it at least offers a viable alternative, and has two advantages over Pascal’s: (i) it draws on known facts (our mortality) rather than theoretical possibilities (an immortal soul), and it does not require any kind of wager. The upshot is that, while thedestructive phase of Pascal’s ‘revaluation’ may have been successful, the success of the constructive phase is dubious. As an appeal to the libertine’s self-interest, the wager falls short. The first section of this paper presents the objection to Pascal’s argument, the second section develops a response on Pascal's behalf, and the final section presents enduring difficulties with Pascal’s argument by introducing Kaufmann’s alternative approach. II. The Libertine’s Objection to Pascal’s Wager Crucially, Pascal’s wager is written in a language that the libertine will understand—the language of self-interest. We can summarize Pascal’s argument by saying that the libertine’s current lifestyle can, at most, offer her finite happiness: “what you are staking is finite.” If she gambles on belief in God, however, then the libertine opens herself up to the possibility of gaining infinite reward, and, as Pascal puts it, “all bets are off wherever there is an infinity.” As long as there are not infinitely greater chances that God doesn’t exist, than that God does exist, then, Pascal urges the libertine that, “there is no time to hesitate, you must give everything.” Pascal thereby appeals to the libertine’s instrumental rationality by identifying what it is that the libertine intrinsically desires—namely, her own “beatitude” (4)—and then by arguing that in order to truly satisfy this desire, the libertine must wager on belief in God (5). But there is a catch: the infinite happiness guaranteed by God is incomparable to any form of finite happiness that the libertine now enjoys. This is certainly true after the libertine accepts the wager, since belief in God demands that the libertine radically transform her lifestyle, substituting the dictates of her own will for the dictates of God’s. But I will argue that choosing to accept the wager requires the libertine to undergo what is arguably an even more dramatic transformation: she must transform her value system. This is because the wager does not just promise the libertine more happiness, but rather, it promises her qualitatively different happiness. And the wager only works if the libertine values this sort of happiness. It is true that Pascal never specifies what he means by “an infinite life of infinite happiness,” but inasmuch as he believes that it is the result of a life of faith, we can assume that he is referring to a traditional Catholic conception of heaven. Consider, then, the following reply in the mouth of Pascal’s libertine: an infinite life with God sounds absolutely miserable! First of all, inasmuch as my happiness is derived, at least in part, from the enjoyment of bodily pleasures, I cannot imagine being happy without my body. Happiness means hunting expeditions, games of cards, lavish feasts, and good company—where can I find those in heaven? Moreover, God promises to unite with believers in heaven. But why should I want to unite with God? You are offering me something that satisfies absolutely none of my desires. My life would not be better if God existed, even, (and this is crucial), if God rewarded me as a believer! Pascal’s wager works by presenting the libertine with a gamble: if God exists, there will be infinite happiness for those who believe and infinite misery for those who do not. This is because God promises to reward believers by uniting with them in heaven, and punishing non-believers by burning, or otherwise punishing them, in hell. But from the libertine’s perspective, there is no gamble: the prospects of heaven and hell are both unattractive, and since we are dealing with infinite amounts of time, they are both infinitely distressing prospects. There is therefore nothing worth gambling on. We might try to assure the libertine that once she is a believer, she will desire eternal life in heaven. We often persuade people to do something by promising that they might enjoy it, even if right now they cannot understand why. To take a mundane example, you might happily follow the recommendation of a friend to try a new food, even if you cannot imagine what it would be like to eat it. True, the stakes of this decision are qualitatively lower, but the same epistemic uncertainty seems to be at play: you cannot know whether you appreciate this food until you taste it, and you also cannot know whether you value a relationship with God until you attempt to build one. Inasmuch as wagering on the food does not involve any sort of evaluative transformation on your part, wagering on God might be the same way. But, there is a disanalogy between the two cases. Pascal is presenting the libertine with a certain decision matrix in which Pascal assigns an infinitely positive value to heaven and an infinitely negative value to hell (6). In order for the libertine to assign the same values to the given outcomes in the matrix, she must transform her evaluative framework, so that this-worldly happiness is no longer her highest value. The case of the new food, however, does not require a transformation of this sort. You know that you will either like or dislike the food, and you know that you value eating food that you like and disvalue eating foods that you do not like. Of course, there is still a gamble involved in trying the food since it is impossible to know how you will feel about its taste (7).But crucially, this puts you in a position that is analogous to the libertine considering Pascal’s wager only provided that she has already made the necessary evaluative transformation. It does not put you into the position of a standard libertine, who values her current happiness above all else, and therefore does not see anything to gamble for. Let’s describe a case that would be more analogous to the wager. Henrietta is a principled ascetic, meaning that she values abstention from earthly pleasures to whatever extent possible. As such, she adheres to a strict diet of only bread and water. She has sworn off earthly pleasures and adheres to a strict diet of bread and water. Suppose that her cousin, Henry, a food connoisseur, wants to convince her to try some caviar. He knows that he has never tasted caviar before, but he argues that, given her expected utility calculations, those who eat caviar enjoy it so much that he stands to gain more than lose from trying the caviar. But of course, even if Henrietta thought that Henry’s calculations were correct, they would be meaningless to her. As a matter of principle, she does not value the sensual pleasure provided by eating delicious food. Therefore, the experience of enjoying the food might be even more negative for Henrietta than the experience of disliking it, inasmuch as she has moral disdain for sensual pleasure. Henry’s calculations will only be persuasive if Henrietta abandons her current ascetic values and adopts a more hedonistic lifestyle. This is similar to the situation that the libertine finds herself in when presented with Pascal’s wager. Just as it would be meaningless to convince Henrietta to eat caviar by convincing her to abandon her ascetic lifestyle, to suggest that the libertine will desire heaven if she is a believing Christian is to reformulate the challenge rather than to address it. By formulating the libertine’s challenge this way, we realize just what Pascal’s wager requires: before the libertine can decide to wager on God’s existence, she must first revolutionize her evaluative framework, performing what the philosopher Friedrich Nietzsche would refer to as a “revaluation of values,” i.e. a complete reversal of her normative commitments. At present, a religious lifestyle is not in the libertine’s self-interest; the libertine’s conception of happiness is tethered to her physical existence in this world, and therefore she will not be moved by promises of her soul being rewarded in another world. Now that we have established that the libertine must be induced to reassess her values before she can be persuaded to wager on God’s existence we must ask: does Pascal present the libertine with such an argument? III. Pascal’s Revaluation There is an inherent challenge in trying to influence someone to “revalue their values”: namely, identifying which values one can appeal to in formulating the argument. Generally, pragmatic arguments like Pascal’s wager take the agent’s values as a starting point, and then proceed to demonstrate that a certain action will do a better job at furthering the agent’s values. But if we use values as a starting point, how can we cogently provide someone with practical reasons to adopt a wholly new evaluative framework, without invoking the very values that they do not yet possess? To see how we might formulate a “revaluation” without recourse to other values, we can draw inspiration from Friedrich Nietzsche, whose philosophical undertaking was just that: a revaluation of all values. In his work, Nietzsche’s Revaluation of Values: A Study in Strategies, contemporary Nietzsche scholar, E.E. Sleinis, analyzes the various strategies that Nietzsche uses to achieve his evaluative revolution. One strategy that he discusses, “destruction from within,” undermines a certain value by revealing that it is internally inconsistent (8). This undermines the value on its own terms. There are a few different permutations of this strategy. One, which Sleinis refers to as “false presuppositions,” aims to show that “the value requires a fact to obtain that, as it turns out, fails to obtain.” In attacking the factual, rather than the evaluative component of the value system, Nietzsche is able to undermine it from within, without recourse to other values. For example, Nietzsche devalues “disinterested contemplation as the ideal of aesthetic contemplation” by arguing that humans are simply incapable of disinterested contemplation. We cannot disengage from our passions, emotions, and other interests when we contemplate works of art. “We can put this point in more graphic terms,” explains Sleinis, by arguing that “the pure aesthetic contemplator is a fiction" (9). In what follows, I will demonstrate how Pascal launches a similar attack on the libertine’s value system by arguing, in a parallel manner, that the happy libertine is a fiction. As mentioned, the wager is merely a part of Pascal’s broader apologetic project, and it is within this broader project that Pascal employs this Nietzschean revaluation strategy. There are many notes in the Pensées devoted to bemoaning the wretchedness of the libertine’s condition, and arguing that man simply cannot be happy without God. And while we do not know where Pascal would have placed these ideas (if at all) in his final work, we can still argue that, Pascal’s intentions aside, they do an excellent job preparing the libertine to be receptive to the wager. Once Pascal convinces the libertine that her approach to life was premised on a false presupposition, he is able to urge her to gamble on a new one. Pascal undermines the libertine’s approach to life—happiness derived from entertainment or diversions as the ideal of happiness—in the same way that Nietzsche undermines disinterested contemplation as the ideal of aesthetic contemplation: he shows that humans are incapable of achieving happiness through their diversions (10). While traces of this argument are evident throughout the Pensées , Pascal’s most sustained argument for it appears in his section “Diversions.” After examining this argument, we will turn to the possibility of an alternative response on behalf of the libertine in the spirit of philosopher Walter Kaufmann. Pascal presents us with an imagined dialogue, presumably between a believer and a libertine, in which the libertine explains her approach to life: “is not happiness the ability to be amused by diversion?”(11). For the libertine, to be happy is to be entertained. We can understand some of the more perplexing behaviors of people if we realize that their underlying motivation is to divert and entertain themselves: “those who philosophize about it, and who think people are quite unreasonable to spend a whole day chasing a hare they would not have bought, scarcely know our nature.” People do not hunt because they want the kill, but rather, because hunting provides them with entertainment. Pascal argues that all men, even kings who are in “the finest position of the world,” are miserable, “if they are without what is called diversion” (12). The reason that we value diversion, explains Pascal, is because it allows us to avoid confronting all of the unpleasant features of our condition. We do not seek “easy and peaceful lives,” because those would force us to think about “our unhappy condition” (13). The “unhappy” quality of our condition is delineated in the believer’s reply to the libertine; the libertine asks whether happiness is not the ability to be amused by diversions, to which the believer replies, “No, because that comes from elsewhere and from outside, and thus it is dependent, and subject to be disturbed by a thousand accidents which cause inevitable distress” (14). All of the activities with which the libertine happily amuses herself are all highly contingent, and are made easily inaccessible by any number of factors that are necessarily out of the libertine’s control. Moreover, all of the libertine’s amusements are necessarily ephemeral, so that even if they are miraculously undisturbed by illness or accident, they will inevitably be disturbed by death. This is the primary source of the libertine’s inconsolable misery in Pascal’s conception—no matter how much happiness she derives from her activities in this world, her impending death constantly threatens to rob her of everything. As Pascal puts it, man “wants to be happy, wants only to be happy, and cannot want not to be so. But how will he go about it? The best way would be to render herself immortal, but since he cannot do this, he has decided to prevent himself from thinking about it” (15). Thoughts of mortality thwart the libertine’s ability to enjoy the world around, and so the libertine blocks out these thoughts with diversions. In Pascal’s example, the libertine hunts vigorously for a hare that he would never buy, because while “the hare does not save us from the sight of death...the hunt does” (16). All of this explains how Pascal can argue, in the spirit of Nietzsche, that valuing the happiness derived from diversions as the ideal of happiness falsely assumes that humans can find happiness in diversions. Pascal demonstrates that they cannot. Our diversions are inevitably “subjected to be disturbed by a thousand accidents, and this causes inevitable distress” (17). Crucially, the distress is inevitable ; even if we spend most of our time completely amused by diversions, the fact that our source of happiness is external and contingent puts us in a constant state of instability. We are rendered eternally dependent on factors beyond our control and are therefore powerless to console ourselves in the face of adversity unless the universe conspires to offer us diversion. We might wonder if Pascal’s case is overstated. Couldn’t the libertine seek happiness through something more substantial than a mere “diversion,” like, for example, self-fulfillment? I think that for Pascal the answer is no. This is because death robs any pursuit–even the pursuit of self-fulfillment–of enduring meaning. As Pascal puts it: “the final act is bloody, however fine the rest of the play. In the end, they throw some earth over our head, and that is it forever” (18). The libertine can only be satisfied if she does not think about the “final act” that will undermine “the rest of the play,” and because of this, all of her pursuits, even those that appear most meaningful, are really attempts to distract herself from this sobering fact. Pascal suggests that if the libertine actually confronted the truth of her condition, she would desist from all of her pursuits–even her desire for self-fulfillment–because they would no longer mean anything. That the libertine seeks to distract herself from the contingency of her condition with something that is itself contingent, is, I think, sufficient to undermine the libertine’s approach to life. But Pascal goes even deeper in exposing the problems with the libertine’s approach. He writes that, “The only thing that consoles us for our miseries is diversion, and yet this is the greatest of our miseries. For it is mainly what prevents us from thinking about ourselves, leading us imperceptibly to our ruin” (19). The libertine’s pursuit of diversions makes genuine self-knowledge impossible—if she is always distracting herself, she will never take the time to understand herself and her condition, and search for a more reliable and stable form of happiness. How can we say that someone is happier the more diverted they are, if someone who is diverted is also wholly alienated from herself? (20). It is this consideration that motivates Pascal’s famous observation that, “man’s unhappiness arises from one thing alone: that he cannot remain quietly in his room” (21). As Pascal sees it, diversion as source of true happiness–much like Nietzsche’s detached contemplation–is, indeed, a fiction. Pascal has induced a value crisis in the libertine by rendering what she previously valued—the amusements of earthly life—fundamentally meaningless. So what now? Left to live without diversion, Pascal explains, “we would be bored, and this boredom would lead us to seek a more solid means of escape” (22). I will argue that Pascal asking the seeking libertine to consider the possibility of an immortal soul is, in a certain sense, similar, to Nietzsche’s imagined demon presenting the possibility of eternal recurrence–i.e the doctrine that our live will be repeated infinitely many times into the future. Nietzsche presents this as a mere possibility , the consideration of which is nonetheless capable of inspiring an evaluative transformation in his readers (23). Entertaining the possibility of eternal recurrence hopefully inspires us to seek meaning in the lives that we are living on earth, rather than placing all of our hopes on a life after death. Analogously, before the wager, Pascal does not expect the libertine to believe in the immortal soul as a metaphysical fact , but he nonetheless presents it to her as an attractive possibility, powerful enough to reorient her life. If the possibility of an immortal soul isn’t even on her radar, then the wager argument cannot even get off the ground. But Pascal believes that considering this possibility will induce the libertine to seek God, the wager will then point out that doing so maximizes her expected utility, and eventually she will be certain of God’s existence (24). What makes the libertine’s condition so unhappy are all of the external threats that face her at every moment, the most debilitating of which is her own death (25). The libertine’s old approach was to avoid confronting this reality. As Pascal puts it, “as men are not able to fight against death...they have it into their heads, in order to be happy, not to think of them at all.”What Pascal offers the libertine is a solution that is truly sustainable: instead of valuing distractions from our mortality, we can value that which denies it altogether . We can reject that part of us that gets piled with dirt, since it can only make us unhappy, and instead we can embrace our immortal soul (26). Pascal presents this as a dazzling, metamorphic possibility, writing that “the immortality of the soul is something so important to us, something that touches us so profoundly, that we must have lost all feeling to be indifferent to knowing the facts of the matter” (27). Inspired by the possibility of an immortal soul, we are primed to be receptive to the wager, which tells us that if we want to maximize the expected outcome for our soul, we must gamble on God’s existence (28). If we now believe that it is through taking care of our immortal soul that we can transcend the misery of our bodily condition, the wager will indeed have a powerful pull on us. Inasmuch as the libertine’s challenge is escaping the misery of her contingent condition, Pascal presents the possibility of the immortal soul as a powerful alternative to the use of amusements and diversions. But is this alternative persuasive? The weakness in Pascal’s argument is noted by Sleinis in his analysis of Nietzsche’s parallel argument: “pure possibilities may have some capacity to exert pressure on our choices, but this capacity can in no way be equal to that of known actualities” (29). There is, however, a limit to how influential a mere possibility can be. If you know that a certain consideration that is motivating you to act, is only possibly true, then you won’t feel like you have a decisive reason to act. Pascal is confident that if we take the possibility of an immortal soul seriously, then we will eventually be led to believe it as an actuality. The problem, however, is whether we can take it seriously enough for this epistemic transformation to occur. This doesn’t mean that Pascal’s argument can not work at all, it just means that its practical success will likely be limited to libertines with certain psychological constitutions (i.e. it will be more persuasive to someone with a credulous disposition than to someone with a skeptical disposition). IV. Walter Kaufmann on Our Misery So far, we have seen that Pascal’s wager requires a certain evaluative shift on the part of the libertine, and that certain sections of the Pensées can be read as making an argument for that shift. But there is a weakness to part of this argument, namely, the plausibility that a mere possibility can inspire a dramatic revaluation. What I would like to consider, therefore, is an alternative response to the libertine’s crisis of value that would allow her to retain her current theoretical framework, but nonetheless allow her to transcend the apparent miseries of the human condition. We can read Kaufmann as addressing the libertine at the same stage that Pascal is—once she has accepted the futility of her diversions but does not know how else to cope with her unhappy condition—and arguing that the libertine can embrace her mortality rather than try to escape from it. Examining Kaufmann’s argument helps us to appreciate the way in which Pascal’s wager falls short as a straightforward appeal to the libertine’s self-interest. At most, the wager offers the libertine one way to escape her misery, but the libertine may find Kaufmann’s ideas more persuasive. While for Pascal, the libertine is unhappy if she is left to ponder her mortal condition, Kaufmann argues that this is not so; in fact, it is our mortality that renders our lives here worthwhile. The libertine considers herself miserable because she will not live in this worldforever, but Kaufmann urges her to consider how miserable she would be if she did . It's true that death is frightening for those who “fritter their lives away,” but “if one lives intensely, the time comes when sleep seems bliss” (30). Meaning, that if the libertine embraces all that this-life throws at him, then she will welcome death as a much-needed rest. One cannot live intensely forever. This argument might seem a bit problematic. After all, it is not clear why a simple good night’s sleep (or two) would not suffice for the one who lives intensely—why should she crave eternal sleep? The answer to this lies in the second argument that Kaufmann makes, namely, that without an eternal deadline we would not be able to live our lives as meaningfully. Our impending death offers a perspective that would otherwise be impossible. Kaufmann describes the way in which the threat of death motivates us to live vigorously: “the life I want is a life I could not endure in eternity. It is a life of love and intensity, suffering and creation, that makes life worthwhile and death welcome.” Death “makes life worthwhile” b ecause it encourages us to carve out lives that are indeed worthwhile. For example, “love can be deepened and made more intense and impassioned by the expectation of impending death,” meaning that our desire to be with someone we love is made all the more acute by our knowledge that we cannot be with them forever. When the libertine worries about the fact that she may one day lose her beloved, she need not retreat from these thoughts—either by seeking diversion or by entertaining the possibility of an immortal soul—but rather, as Kaufmann advises, she should embrace them. The fact that she may never see her beloved again is all the more reason for the libertine to express her love more eloquently and fervently than she ever would have if she was not worried about losing her beloved. It is not just that such intensity and p assion would be impossible to sustain in an infinite life, but rather that in an infinite life we could never achieve it in the first place. Death offers a perspective on life that, contrary to what Pascal argues, makes our lives in this world vibrant and precious. Pascal writes that, “As men have not been able to cure death, wretchedness, ignorance, they have decided, in order to be happy, not to think about those things” (31). But Kaufmann argues that it is precisely by thinking about her own death that the libertine can be inspired to live in a way that makes her happy. Perhaps this is why Ecclesiastes muses that “it is better to go to the house of mourning than to the house of feasting”—proximity to death provides the living with an invaluable lesson to truly “take to heart” (32). The libertine desperately avoids confronting her mortality, when in fact, thinking about death makes her life better right now: “one lives better” says Kaufmann, “when one expects to die,” and takes advantage of the time she has (33). This is not to deny the tragic reality that death often visits too early, but rather, to suggest that inasmuch as this is not always the case, we are, as philosopher Bernard Williams puts it, “lucky in having the chance to die” (34). Pascal might still counter that even if contemplating our death imbues our lives with urgency and significance, belief in the Christian afterlife also accomplishes this inasmuch as our conduct in this life determines how we fare in the next. But this argument will have no sway over the libertine at the stage of the argument at which we are now encountering him—when she does not yet believe in God. And what Kaufmann’s argument has demonstrated is that the libertine does not need to wager on God’s existence in order to live life meaningfully and passionately. While the Wager asked the libertine to revalue her values–which, as we have seen, is a non-trivial requirement–Kaufmann speaks directly to the evaluative commitments that the libertine already has. In a way, Kaufmann uses mortality in the same way that Pascal uses immortality: to redeem us from our misery by impressing upon us the urgency and significance of our lives. It’s true that Kaufmann and Williams don’t consider the possibility of an afterlife that is equally as exciting–if not more exciting–than earthly existence. There is, after all, no reason to assume that when we die we lose our ability to exercise agency. But the point is simply that they offer a way of seeing life on earth as meaningful regardless of what comes afterward. This is in sharp contrast with Pascal’s picture in which life on earth is miserable unless it is redeemed by belief in the afterlife. This is not to say that Pascal is wrong per sé; it is possible that Kaufmann would have lived a better life had he sought God and embraced religion. It is possible that he is currently b urning in the depths of hell, wishing his philosophical reasoning had taken a different turn. But this is of no consequence. What I am arguing is that Pascal is wrong to assume that the libertine’s mortality leaves her irredeemably miserable; Kaufmann offers an alternative perspective, whereby the libertine’s mortality is precisely what redeems her life and makes it worthwhile. Crucially, Kaufmann’s argument does not ask the libertine to entertain any theoretical p ossibilities like Pascal’s does, and it never requires that she make a wager of any sort. The libertine might still prefer Pascal’s argument, and therefore choose to see “the final act” as “bloody.” But as we have seen, she might choose to welcome death as a “blissful sleep.” And if Pascal cannot convince the libertine that mortal life is miserable, then he cannot get her into the evaluative mindset to be receptive to the wager. V. Conclusion The success of Pascal’s wager as an appeal to the libertine’s self-interest depends on his ability to convince the libertine to change her evaluative framework. At least at the outset, the possibility of an infinite life with God in heaven will repel rather than attract the libertine, giving her no reason to “wager all she has” (35). If we study the wager against the backdrop of Pascal’s broader apologetic project, however, we find the resources to persuade the libertine to “revalue her values.” This argument takes place in two stages. First, Pascal shows the libertine that the premium she places on amusements and entertainment falsely presupposes that they can truly make her happy. Pascal argues that they fail to do so, both because they are external—and therefore “subject to a thousand accidents”—and because they alienate the libertine from herself, making it impossible for her to discover what might truly make her happy. With the libertine’s evaluative framework thus dismantled, the inherent unhappiness of her condition becomes even more acute. Without diversions, she must confront the miserable fact of her mortality head-on. It is in this evaluative vacuum that Pascal offers her a new value that can save her from the misery of mortality: the immortal soul. At this stage of the argument, the libertine will not believe in the immortality of her soul as a metaphysical fact, but in considering this marvelous possibility, she will be encouraged to investigate it. And when Pascal tells her that her soul will fare best if she gambles on God’s existence, she will eagerly oblige. But this need not be the only way to save the libertine from the misery of mortality: Kaufmann suggests that the libertine should embrace and cherish her mortality because it is through the prism of her own death that her life becomes urgent and precious. This approach does not require an epistemic leap of faith like Pascal’s did; it simply requires the libertine to look at the fact of her life in a new light. The upshot is that for those who find themselves moved by Pascal’s polemic against diversions, but unmoved by her appeal to dubious metaphysical facts, there might be a more attractive solution. After he presents the libertine with her wager, Pascal urges that “there is no time to hesitate!” From what we have seen, however, there might be far too much of it. Endnotes: 1 This insight is due to Ian Hacking, quoted in: Hájek, Alan. “Pascal's Wager.” Stanford Encyclopedia of Philosophy , Stanford University, 1 Sept. 2017, plato.stanford.edu/entries/pascal-wager/. 2 While, as Hajek notes in her article, Pascal actually presents three different wager arguments, for the purposes of this paper, I will not discuss the correct interpretation/presentation of the wager. This is because my paper is not so much about the mechanics of the wager, but about the wager as a general strategy to inspire pragmatic commitment to God. 3 For the purposes of this paper, I adopt Pascal’s use of the term “libertine” to refer to his intended audience. This is partially for convenience, and partially meant to underscore that Pascal’s argument is addressed to a specific target audience and is not necessarily applicable to anyone who does not believe in God. As we will see throughout this paper, Pascal’s libertine has a very specific set of values and concern, which at times may even seem unrealistic. Inasmuch as Pascal sees himself as addressing this sort of person, however, this paper will assume that his observations are accurate, and analyze whether Pascal’s argument is successful on Pascal’s own terms. 4 All quotations in this paragraph come from: Pascal, Blaise, and Roger Ariew. Pensées. Indianapolis, IN: Hackett Pub. Co., 2005 pg. 212-13 (S680/L418). 5 Pascal actually argues that there are two things that the libertine desires: the true and the good. However, Pascal argues that we cannot know whether God exists, and therefore “your reason is no more offended by choosing one rather than the other.” Since the libertine only stands to gain in the realm of happiness, and not in the realm of truth (or at least not yet), I focus, for brevity, only on this claim. 6 This is a simplification. Pascal does not mention exactly how we ought to quantify the harm that will come to a non-believer if God exists. It is certainly possible that the harm will be infinite. And since this is the strongest way to formulate Pascal’s wager, I choose to present it this way. 7 The case of trying a new food is interesting in its own right. While it is beyond the scope of this paper to analyze this case, it is worth noting that it is unclear how one might weigh the value of trying a food and disliking it against the value of trying a food and liking it, since there are also different degrees of liking and disliking a food. But I think it is fair to assume that, having had the experience of eating foods that you’ve liked and disliked, you can have a rough sense of the maximum and minimum amount of pleasure that can be derived from eating a food. I would venture to say that trying a food that you love more than any food you have ever eaten, is still not a qualitatively different type of pleasure than eating a food that you really love. 8 Sleinis, E. E. Nietzsche's Revaluation of Values: A Study in Strategies. Urbana: University of Illinois Press, 1994, pg. 168. 9 Ibid. 10 As Ariew notes in his translation, “the word ‘diversion’suggests entertainment, but to divert literally means: “to turn away” or to mislead.” By using this word, Pascal makes his critique implicit from the beginning. 11 Pascal, S165/L132. 12 Quotations in this paragraph come from Pascal, S168/L136. 13 Ibid. 14 Pascal, S165/L132. 15 Pascal, S166/L134. 16 Pascal, S168/L136. 17 Pascal, S165/L132. 18 Pascal S197/L165. 19 Pascal, S33/L414. 20 The libertine says something in this spirit in Pascal, S165/L132. 21 Pascal S168/L136. 22 Pascal, S33/L414. 23 In some interpretations of Nietzsche, the eternal recurrence is actually presented as a metaphysical truth that we must believe in. Inasmuch as I am looking for an example that will parallel Pascal, however, I have chosen to discuss the interpretation that sees it as a pure possibility. 24 Evidence that Pascal believes those who are inspired by the possibility of an immortal soul and genuinely seek God as a result will come to have sure knowledge of her existence can be found in S681/L427. 25 This is not intended to summarize Pascal’s nuanced account of why we are wretched, but rather to encapsulate what it is that the libertine recognizes as “unhappy” about her condition: that is, all of the external factors that threaten her ability to enjoy diversions, the most intractable of which is death. 26 This might seem almost like a pre-wager-wager: wager on belief in an immortal soul, since it provides the potential for immortality rather than on the belief in a mortal soul, since this will lead to a life of misery. 27 Pascal S681/L427. 28 Of course, it is possible that there are other belief systems which include the notion of an immortal soul in an equally attractive way. This is similar to the well-known “many Gods objection” to Pascal’s wager, and while addressing it is not the subject of this paper, it is worth noting its presence. When I argue later on that the argument can work, I mean that, leaving other considerations such as this objection aside, it can work. 29 Sleinis, pg. 173. 30 Kaufmann, Walter, and Immanuel Velikovsky. The Faith of a Heretic. [1st ed.] Garden City, N.Y: Doubleday, 1961 , pg . 386. 31 Pascal S168. 32 Ecclesiastes 7:2. 33 Quotations in this paragraph come from Kaufmann, pg. 386. 34 Williams, Bernard. “The Makropulos Case: Reflections on the Tedium of Immortality.” Chapter. In Problems of the Self: Philosophical Papers 1956–1972 , 82–100. Cambridge: Cambridge University Press, 1973. 35 Pascal, S680/L418. Bibliography: Kaufmann, Walter, and Immanuel Velikovsky. The Faith of a Heretic. [1st ed.] Garden City, N.Y: Doubleday, 1961 . Pascal, Blaise, and Roger Ariew. Pensées. Indianapolis, IN: Hackett Pub. Co., 2005. Sleinis, E. E. Nietzsche's Revaluation of Values: A Study in Strategies. Urbana: University of Illinois Press, 1994. Williams, Bernard. “The Makropulos Case: Reflections on the Tedium of Immortality.” Chapter. In Problems of the Self: Philosophical Papers 1956–1972 , 82–100. Cambridge: Cambridge University Press, 1973. Previous Next

Douglas Beal The Financial Case for Nations and Corporations to Put People and the Planet First Douglas Beal We are in a period of increasing societal disruption. Pressure is mounting to ad- dress the climate crisis. Racial equity issues have moved to the forefront. And the COVID-19 pandemic has caused untold suffering and death and upended economies around the globe. In the past, addressing such issues has been seen primarily as the responsibility of government. But increasingly, there are expectations that the private sector must play a leading role in driving progress on major societal challenges. I, along with my colleagues at Boston Consulting Group, have spent the last decade supporting nations and corporations in addressing social and environmental issues—and measuring how their efforts impact country GDP and company financial performance. My work in this area began with economic development, helping nations to advance in a way that improved the living standards of citizens. More recently I refocused on private sector work, helping companies and investors create strategies to deliver both business and societal value. The research and client work I’ve done in both areas reveal a powerful insight: whether one is talking about a country’s economic growth or a company’s prof- its or returns for shareholders, performance is not degraded by focusing on how decisions impact people and the planet. Rather, the evidence is mounting that integrating such factors into strategy enhances financial performance. Putting Well-Being at the Heart of a Nation’s Strategy BCG’s insight on these dynamics started with our work in the area of economic development. As we supported presidents and prime ministers around the world in honing their development strategies, it became clear they were looking for a way to measure their progress beyond the purely financial benchmark of GDP. This reflected their acknowledgement that robust GDP per capita growth in the short term means little if living standards are undermined in the long term (by poor health, underinvestment in education, a degraded environment, and a widening gap between rich and poor). The Sustainable Development Goals had not yet been put in place at this time, meaning a globally-recognized holistic framework for measuring country progress did not exist. We set out to create one. This led to some deep conversations about what really matters for a society. As Robert F. Kennedy said, GDP “measures everything in short, except that which makes life worthwhile.” We had to ask our- selves: What actually makes life worthwhile? We thought about general measures of happiness, for example, and whether levels of citizen happiness would be a good barometer for a nation’s performance. Ultimately, we decided that happiness would be too subjective for what we wanted to achieve. Instead we decided to focus on well-being , the conditions and quality of life people experience. We then asked ourselves: how do you measure well-being—and how can a government contribute to it? We spoke with numerous experts and dug into the re- search on well-being to determine what factors should comprise our measure. We eventually zeroed in on 10 dimensions: income, economic stability, employment, health, education, infrastructure, equality, civil society, governance, and environment. We identified a series of indicators for each—a total of 40 in all. The result was the Sustainable Economic Development Assessment, a diagnostic tool and measurement framework launched in 2012. SEDA allows us to track how a country’s well-being compares to that of other nations, determine the pace of progress over time, and identify areas in which countries are performing well or need to improve. SEDA revealed valuable insights. First, not surprisingly, countries with higher levels of wealth tended to have higher well-being. Norway, for example, has had the highest level of well-being relative to the rest of the world every year since we launched SEDA. Second, not all countries convert their wealth (GDP per capita) into well-being at equal rates. Some deliver well-being levels that are beyond what one would expect given the country’s wealth—and others deliver well-being far be- low what would be expected. In recent years Vietnam has been among the leading countries in terms of converting wealth into well-being—outpacing countries such as Germany, France, and the US on this metric. Third, inequality—and not just income inequality—has a major impact on well-being. Certainly, income inequality gets significant attention in political and media circles. But SEDA captures a broader view, assessing not only income inequality but also the lack of equity in access to health care and education as well. And our analysis last year found, somewhat surprisingly, that high levels of social inequality are a greater drag on well-being than high levels of income equality. Over the years, as we continued to assess country levels of well-being, public sector clients, journalists, and others often raised a similar question. While it was clear that countries with higher levels of wealth or growth had more resources to advance well-being, we were frequently asked if the reverse was true. So, was there evidence that countries with a better record on well-being ultimately posted more robust GDP growth? In 2018 we decided to take a stab at answering that question. By then we could access ten years’ worth of SEDA data—enough time to give us confidence we could identify a long-term trend if it existed. Drawing on data for all 152 countries in our data set, we looked at a country’s initial well-being performance relative to its wealth in the period leading up to and including the financial crisis (from 2007 through 2009)—and its growth rate in the decade that followed. We found that on average, countries that produced better well-being for their population given their level of wealth did in fact have a higher GDP growth rate in the future. Our analysis also found that countries that had a better record at delivering well-being for citizens were more resilient during the financial crisis, taking fewer months to recover to pre-crisis GDP levels than countries with weaker records on well-being. It turns out that taking care of people and the planet is good economics. Focusing on Total Societal Impact As we worked with nations on development strategies, we urged them to think strategically about integrating the private sector into those efforts. This included understanding where the country’s most pressing needs existed and identifying the industries and companies that could play a role in addressing those needs. Banks, for example, can be key partners in expanding access to capital for entrepreneurs. Food manufacturers that expand their supply chain to include small-holder farmers can help raise incomes for those individuals and reduce poverty rates overall. And biopharmaceutical companies that move to expand access to medicine can play a vital role in improving health outcomes. Time and time again my economic development work in the public sector rein- forced the importance of the private sector in advancing important societal issues. In 2016, I started focusing more on working directly with large multinational corporations to find ways to improve both business returns and their positive impact on society. At that time, academic research had shown that integrating environmental, social, and governance (ESG) performance into investment decisions led to better returns from a portfolio perspective. What that meant for individual businesses was not quite as clear. Most of our clients are large corporations—and they had a lot of questions. First, CEOs and CFOs were grappling with whether they should think of good ESG performance as a cost or an opportunity. They also wanted to understand what specific ESG topics were most important for their industry. So, we set out to prove that in fact ESG is an opportunity—not a cost—and to identify those topics that matter for specific industries. In 2017, I joined a group of colleagues in the Social Impact practice to conduct a detailed study of ESG performance in four industries: biopharmaceuticals, oil and gas, consumer packaged goods, and retail and business banking. We assessed company performance in dozens of ESG topics, such as ensuring a responsible environmental footprint or promoting equal opportunity. We looked for any correlation with market valuation multiples and margins. Our goal was to determine whether companies that excelled in those areas, enhancing what we call Total Societal Impact (TSI), saw a difference in financial performance versus companies that lagged in those ESG areas. Now, as members of the Social Impact practice, we were of course hoping we’d find a link. In fact, the results exceeded our expectations. Nonfinancial performance (as captured by the ESG metrics) has a statistically significant positive correlation with the valuation multiples of companies in all the industries we analyzed. In each industry, investors rewarded the top performers in specific ESG topics with valuation multiples 3% to 19% higher, all else being equal, than those of the median performers in those topics. And top performers in certain ESG topics had margins that were up to 12.4 percentage points higher, all else being equal, than those of the median performers in those topics. The bottom line: not only was there no penalty for focusing on ESG, but companies that performed well in critical ESG areas were rewarded in the market. The Moment of Truth Our work in SEDA and TSI were completely different—looking at different players, using different methodologies, and conducted at different times. Yet the results yielded strikingly parallel insights: putting people and the planet at the center of strategy improves financial performance. Those insights have major implications for nations and companies as they navigate the current period of turbulence and disruption. Certainly, it is too early to know which countries around the world will prove more resilient in the face of the pandemic. However, our research does support the view that those nations that design recovery strategies that support citizen well-being are likely to fare best. In particular, governments should design economic re- vitalization programs that don’t just position their nation for economic success in the future, but also ensure the benefits of any gains are equally shared among citizens. And those that created massive stimulus programs must leverage them as an opportunity to accelerate progress in fighting climate change. For companies, the imperative to transform in ways that create positive societal impact is equally strong. Companies should protect employees by ensuring work- place safety, while also reskilling workers and accelerating hiring where feasible. And as they transform their business in the face of the pandemic, they should integrate a societal impact lens into the effort. They can, for example, improve the resiliency of supply chains while also reducing carbon emissions and environmental impact. They can look for new product opportunities that yield real societal benefits. And they can partner with other companies or organizations to maximize impact. There are early indications that companies with a strong focus on their impact on society are faring better right now. Some key MSCI ESG indices, for example, have outperformed non-ESG benchmarks since the start of COVID-19. The challenges facing society today are grave—and daunting. But nations and corporations have massive leverage to move the needle against climate threat, racial inequity, and the devastating pandemic. Without their leadership, it is hard to see how we can make progress in any of these areas. Lucky for us, the evidence shows it is in their economic interest to do so. Previous Next

Mission Statement Julian D. Jacobs '19 Daniel Shemano '19 Advisory Board Frequently Asked Questions CENTER FOR PHILOSOPHY, POLITICS, AND ECONOMICS Join jppe! The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Center for Philosophy, Politics, and Economics at Brown University. The JPPE aims to promote intellectual rigor, free thinking, original scholarship, interdisciplinary understanding, and global leadership. By publishing student works of philosophy, politics, and economics, the JPPE attempts to unite academic fields that are too often partitioned into a single academic discourse. In doing so, the JPPE aims to produce a scholarly product greater than the sum of any of its individual parts. By adopting this model, the JPPE attempts to provide new answers to today’s most pressing questions. Five Pillars of the JPPE 1.) Interdisciplinary Intellectualism: The JPPE is committed to engaging with an interdisciplinary approach to academics. By publishing scholarly work within the disciplines of philosophy, politics, and economics, we believe we are producing work that transcends the barriers of any given one field, producing a sum greater than its individual parts. 2.) Diversity: The JPPE emphasizes the importance of diversity in the articles we publish, authors we work with, and questions we consider. The JPPE is committed to equal opportunities and creating an inclusive environment for all our employees. We welcome submissions and job applicants regardless of ethnic origin, gender, religious beliefs, disability, sexual orientation, or age. 3.) Academic Rigor: In order to ensure that the JPPE is producing quality student scholarship, we are committed to a peer review process, whereby globally renowned scholars review all essays prior to publication. We expect our submissions to be well written, well argued, well researched, and innovative. 4.) Free Thinking and Original Arguments: The JPPE values free thinking and the contribution of original ideas. We seek excellent arguments and unique methods of problem solving when looking to publish an essay. This is one way in which JPPE is hoping to contribute to the important debates of our time. 5.) Global Leadership: By publishing work in philosophy, politics, and economics, we hope the JPPE will serve as a useful tool for future world leaders who would like to consider pressing questions in new ways, using three powerful lenses.

Rebecca Berman Predictive Algorithms in the Criminal Justice System: Evaluating the Racial Bias Objection Rebecca Berman Increasingly, many courtrooms around the U.S. are utilizing predictive algorithms (PAs). PAs are an AI that assigns risk [of future offending] scores to defendants based upon various data about the defendant, not including race, to inform bail, sentencing, and parole decisions with the goals of increasing public safety, increasing fairness, and reducing mass incarceration. Although these PAs are intended to introduce greater objectivity to the courtroom by more accurately and fairly predicting who is most likely to commit future crimes, many worry about the racial inequities that these algorithms may perpetuate. Here, I scrutinize and subsequently support the claim that PAs can operate in racially biased ways, providing a strong ethical objection against their use. Then, I raise and consider the rejoinder that we should still utilize PAs because they are morally preferable to the alternative: leaving judges to their own devices. I conclude that the rejoinder adequately, but not conclusively, succeeds in rebutting the objection. Unfair racial bias in PAs is not sufficient grounds to outright reject their use, for we must evaluate the potential racial inequities perpetuated by utilizing these algorithms relative to the potentially greater racial inequities perpetuated without their use. The Racial Bias Objection to Predictive Risk Assessment ProPublica conducted research to support concerns that COMPAS (a leading predictive algorithm used in many courtrooms) is unfairly racially biased. Its re- search on risk scores for defendants in Florida showed: a. 44.9% of black defendants who do not end up recidivating are mislabeled as “high risk” (defined as a score of 5 or above), while only 23.5% of white defendants who do not end up recidivating are mislabeled as “high risk.” b. 47.7% of white defendants who end up recidivating are mislabeled as “low risk,” while only 28% of black defendants who end up recidivating are mislabeled as “low risk” (1). Intuitively, these findings strike us as an unfair racial disparity. COMPAS’s errors operate in different directions for white and black defendants: disproportionately overestimating the risk of black defendants while disproportionately underestimating the risk of white defendants. In “Measuring Algorithmic Fairness,” Deborah Hellman further unpacks the unfairness of this kind of racialized error rate disparity: First, different directions of error carry different costs. In the criminal justice system, we generally view false positives, which punishes an innocent person or over-punishes someone who deserves less punishment, as more costly and morally troublesome than false negatives, which fails to punish or under-punishes someone who is guilty. The policies and practices we have constructed in the U.S. system reflect this view. Defendants are innocent until proven guilty, and there is a high burden of proof for conviction. Because of this, the judicial system airs on the side of producing more false negatives than false positives. Given the widely accepted view that false positives (punishing an innocent person or over-punishing someone) carry a greater moral cost than false negatives (failing to punish or under-punish- ing a guilty individual) in the criminal justice system, we should be especially troubled by black defendants disproportionately receiving errors in the false positive direction (2). A black defendant mislabeled as “high risk” may very well lead judges to impose a much longer sentence or post higher bail than fair or necessary, a cost that black defendants would be shouldering disproportionately (in comparison to white defendants) given the error rate disparity produced by COMPAS. Second, COMPAS’s lack of error rate parity is particularly problematic due to its links to structural biases in data used by PAs. Mathematically, a calibrated algorithm will yield more false positives in the group with a higher base rate of the outcome being predicted. PAs act upon data that suggest a much higher base rate of black offending than white offending, and this base rate discrepancy can reflect structural injustices: I. Measurement Error: Black communities are over-policed, so a crime committed by a black person is much more likely to lead to an arrest than a crime committed by a white person. Therefore, the measured difference of offending between black and white offenders is much greater than the real (statistically unknowable) difference in offending between black and white offenders, and PAs unavoidably utilize this racially biased arrest data (3). II. Compounding Injustice: Due to historical and ongoing systemic racism, black Americans are more likely to live in conditions, such as poverty, certain neighborhoods, and low educational attainment, that correlate with higher predicted criminal behavior. Therefore, if and when PAs utilize criminogenic conditions as data points, relatively more black offenders will score “high risk” as a reflection of past injustices (4). To summarize, data reflecting unfair racial disparities are necessarily incorporated into COMPAS’s calculations, so unfair racial disparities will come out of COMPAS predictions. For all of these reasons—the high cost of false positives, measurement error, and compounding injustice—lack of error rate parity is a morally relevant attack on the fairness of COMPAS. By being twice as likely to label black defendants that do not end up re-offending as “high risk” than white defendants, COMPAS operates in an unfairly racially biased way. Consequently, we should not use PAs like COM- PAS in the criminal justice system. Rejoinder to the Racial Bias Objection to Predictive Risk Assessment The argument, however, is not that simple. An important rejoinder is based on the very reason why we find such tools appealing in the first place: humans are imperfect, biased decision-makers. We must consider the alternative to using risk tools in criminal justice settings: sole reliance on a human decision-maker, one that may be just as susceptible, if not more, to racial bias. Due to historical and continuing forces in the U.S. creating an association between dark skin and criminality and the fact that judges are disproportionately white, judges are unavoidably in- grained with implicit or even explicit bias that leads them to perceive black defendants as more dangerous than their white counterparts. This bias inevitably seeps into judges’ highly subjective decisions. Many studies of judicial decision-making show racially disparate outcomes in bail, sentencing, and other key criminal justice decisions (5). For example: a. Arnold, Dobbie, and Yang (2018) find, “black defendants are 3.6 percentage points more likely to be assigned monetary bail than white defendants and, conditional on being assigned monetary bail, receive bail amounts that are $9,923 greater” (6). b. According to the Bureau of Justice Statistics, “between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case” (7). Consequently, the critical and challenging question is not whether or not PAs are tainted by racial biases, but rather becomes: which is the “lesser of two evils” in terms of racial justice: utilizing PAs or leaving judges to their own devices? I will argue the former, especially if we consider the long-term potential for improving our predictive decision-making through PAs. First, although empirical data on this precise matter is limited, we have reason to believe that utilizing well-constructed PAs can reduce racial inequities in the criminal justice system. Kleinberg et al. (2017) modeled New York City pre-trial hearings and found that “a properly built algorithm can reduce crime and jail populations while simultaneously reducing racial disparities” (8). Even though the ProPublica analysis highlighted disconcerting racial data, it did not compare decision-making using COMPAS to decisions made by judges without such a tool. Second, evidence-based algorithms present more readily available means for improvement than the subjective assessments of judges. Scholars and journalists can critically examine the metrics and their relative weights used by algorithms and work to eliminate or reduce the weight of metrics that are found to be especially potent in producing racially skewed and inaccurate predictions. Also, as Hellman suggests, race can be soundly incorporated into PAs to increase their overall accuracy because certain metrics can be distinctly predictive of recidivism in white versus black offenders. For example, “housing stability” might be more predictive of recidivism in white offenders than black offenders (9). If an algorithm’s assessment of this metric were to occur in conjunction with information on race, its overall predictions would improve, reducing the level of unfair error rate dis- parity (10). Furthermore, PAs’ level of bias is consistent and uniform, while the biases of judges are highly variable and hard to predict or assess. Uniform bias is easier to ameliorate than variable, individual bias, for only one agent of bias has to be tackled rather than an abundance of agents of bias. All in all, there appear to be promising ways to reduce the unfairness of PAs—particularly if we construct these tools with a concern for systemic biases—while there currently does not appear to be ready means to better ensure a judiciary full of systematically less biased judges. The question here is not “which is more biased: PAs or judges?” but rather “which produces more racially inequitable outcomes: judges utilizing PAs or judges alone?” Even if improved algorithms’ judgments are less biased than those of judges, we must consider how the human judge, who is still the final arbiter of decisions, interacts with the tool. Is a “high risk” score more salient to a judge when given to a black defendant, perhaps leading to continued or even heightened punitive treatment being disproportionately shown towards black offenders? Simultaneously, is a “low risk” score only salient to judges when given to a white defendant, or can it help a judge overcome implicit biases to also show more leniency towards a “low risk” black offender? In other words, does utilizing this tool serve to exacerbate, confirm, or ameliorate the perpetuation of racial inequity in judges’ decisions? Much more empirical data is required to explore these questions and come to more definitive conclusions. However, this uncertainty is no reason to completely abandon PAs at this stage, for PAs hold great promise for net gains in racial equity because we can and should keep working to overcome their structural flaws. In conclusion, while COMPAS in its current form operates in a racially biased way, this factor alone is not enough to forgo the use of PAs in the criminal justice system: we must consider the extent of unfair racial disparities perpetuated by tools like COMPAS relative to the extent of unfair racial disparities perpetuated when judges make decisions without the help of a tool like COMPAS. Despite PAs’ flaws, we must not instinctively fall back on the alternative of leaving judges to their own devices, where human cognitive biases reign unchecked. We must embrace the possibility that we can improve human decision-making by using ever-improving tools like properly crafted risk assessment instruments. Endnotes 1 ProPublica, “Machine Bias.” 2 Hellman, “Measuring Algorithmic Fairness,” 832-836. 3 Ibid, 840-841. 4 Ibid, 840-841. 5 National Institute of Justice, “Relationship between Race, Ethnicity, and Sentencing Outcomes: A Meta-Analysis of Sentencing Research.” 6 Arnold, Dobbie, and Yang, “Racial Bias in Bail Decisions,” 1886. 7 Bureau of Justice Statistics, “Federal Sentencing Disparity: 2005-2012,” 1. 8 Kleinberg et al., “Human Decisions and Machine Predictions,” 241. 9 Corbett-Davies et al., “Algorithmic Decision Making and the Cost of Fairness,” 9. 10 Hellman, “Measuring Algorithmic Fairness,” 865. Bibliography Angwin, Julia, Jeff Larson, Surya Mattu, Lauren Kirchner. “Machine Bias.” Pro- Publica. May 23, 2016. https://www.propublica.org/article/machine-bi- as-risk-assessments-in-criminal- sentencing. Arnold, Savid, Will Dobbie, Crystal S Yang. “Racial Bias in Bail Decisions.” The Quarterly Journal of Economics 133 , no. 4 (November 2018): 1885–1932. https://doi.org/10.1093/qje/qjy012. Bureau of Justice Statistics, “Federal Sentencing Disparity: 2005-2012.” 248768. October, 2015. https://www.bjs.gov/content/pub/pdf/fsd0512_sum.pdf. Corbett-Davies, Sam, Emma Pierson, Avi Feller, Sharad Goel, and Aziz Huq. “Algorithmic Decision Making and the Cost of Fairness.” In Proceedings of the 23rd acm sigkdd international conference on knowledge discovery and data mining , pp. 797-806. 2017. Hellman, Deborah. “Measuring Algorithmic Fairness.” Virginia Public Law and Legal Theory Research Paper, no. 2019-39 (July 2019). Kleinberg, Jon, Himabindu Lakkaraju, Jure Leskovec, Jens Ludwig, Sendhil Mul- lainathan. “Human Decisions and Machine Predictions.” The Quarterly Journal of Economics 133, no. 1 (February 2018): 237–293. https://doi. org/10.1093/qje/qjx032. National Institute of Justice. “Relationship between Race, Ethnicity, and Sen- tencing Outcomes: A Meta-Analysis of Sentencing Research.” Ojmarrh Mitchell, Doris L. MacKenzie. 208129. December, 2004. https://www. ojp.gov/pdffiles1/nij/grants/208129.pdf. Acknowledgments I would like to thank Professor Frick and Masny for teaching the seminar “The Ethics of Emerging Technologies” for which I wrote this paper. Thank you for bringing my attention to this topic and Hellman’s paper and for helping me clarify my argument. I would like to thank my dad for helping me talk through ideas and providing feedback on my first draft of this paper. Previous Next

Sydney Bowen A “Shot” Heard Around the World: The Fed made a deliberate choice to let Lehman fail. It was the right one. Sydney Bowen On the morning of September 15, 2008, the DOW Jones Industrial Average plunged more than 500 points; $700 billion in value vanished from retirement plans, government pension funds, and investment portfolios (1). This shocking market rout was provoked by the bankruptcy filing of Lehman Brothers Holding Inc., which would soon become known as “the largest, most complex, most far-reaching bankruptcy case” filed in United States history (2). Amid job loss, economic turmoil, and choruses of “what ifs,” a myriad of dangerous myths and conflicting stories emerged, each desperately seeking to rationalize the devastation of the crisis and explain why the Federal Reserve did not extend a loan to save Lehman. Some accuse the Fed of making a tragic mistake, believing that Lehman’s failure was the match that lit the conflagration of the entire Global Financial Crisis. Others disparage the Fed for bowing to the public’s political opposition towards bailouts. The Fed itself, however, adamantly maintains that they “did not have the legal authority to rescue Lehman,” an argument played in unremitting refrain in the years following the crisis. In this essay, I discuss the various dimensions of the heated debate on how and why the infamous investment bank went under. I examine the perennial question of whether regulators really had a choice in allowing Lehman to fail, an inquiry that prompts the multi-dimensional and more subjective discussion of whether regulators made the correct decision. I assert that (I) the Fed made a deliberate, practical choice to let Lehman fail and posthumously justified it with a façade of legal inability, and that (II) in the context of the already irreparably severe crisis, the fate of the future financial landscape, obligations to taxpayers, and the birth of the landmark legislation TARP, the Fed made the ‘right’ decision. I. The Fed’s Almost Rock-Solid Alibi: Legal Jargon and Section 13(3) Fed Chairman Ben Bernanke, Former Treasury Secretary Hank Paulson, and New York Fed general counsel Thomas Baxter Jr. have each argued in sworn testimony that regulators wanted to save Lehman but lacked the legal authority to do so. While their statements are not lies, they neglect to tell the entire – more incriminating – truth. In this section, I assert that Fed officials deliberately chose not to save Lehman and justified their decision after the fact with the impeccable alibi that they did not have a viable legal option. In a famous testimony, Bernanke announced, “ [T]he only way we could have saved Lehman would have been by breaking the law, and I’m not sure I’m willing to accept those consequences for the Federal Reserve and for our system of laws. I just don’t think that would be appropriate ”(3). At face value, his argument appears sound; however, the “law” alluded to here– Section 13(3) of the Federal Reserve Act–was not a hard and fast body of rules capable of being “broken,” but rather a weakly worded, vague body that encouraged “regulatory gamesmanship and undermined democratic accountability” (4). i. Section 13(3) Section 13(3) of the Federal Reserve Act gives the Fed broad power to lend to non-depository institutions “in unusual and existent circumstances” (5). It stipulates that a loan must be “secured to the satisfaction of the [lending] Reserve Bank,” limiting the amount of credit that the Fed can extend to the value of a firm’s col- lateral in an effort to shield taxpayers from potential losses (6). Yet, since the notion of “satisfactory security” has no precise contractual definition, Fed officials had ample room to exercise discretionary judgment when appraising Lehman’s assets. This initial legal freedom was further magnified by the opaqueness of the assets themselves – mortgage-backed securities, credit default swaps, and associated derivatives were newfangled financial instruments manufactured from a securitization process, complexly tranched and nearly impossible to value. Thus, the three simple words, “secured to satisfaction,” provided regulators with an asylum from their own culpability, allowing them to hide a deliberate choice inside a comfort- able perimeter of legal ambiguity. ii. Evaluations of Lehman’s Assets and “Secured to Satisfaction” The “legal authority” to save Lehman hinged upon the Fed’s conclusions on Lehman’s solvency and their evaluation of the firm’s available collateral–a task that boiled down to Lehman’s troubled and illiquid real-estate portfolio, composed primarily of mortgage-backed securities. Lehman had valued their portfolio at $50 billion, purporting a $28.4 billion surplus; however, Fed officials and potential private rescuers, skeptical of Lehman’s real-estate valuation methods, argued that there was a gaping “hole” in their balance sheet. Bank of America, a private party contemplating a Lehman buyout, maintained that the size of the hole amounted to “$66 billion” while the Fed’s task team of Goldman Sachs and Credit Suisse CEO’s determined that “tens of billions of dollars were missing” (7). Esteemed economist Lawrence Ball, who meticulously reviewed Lehman’s balance sheet, however, concluded to the contrary–there was no “hole” and Lehman was solvent when the Fed allowed it to fail. While I do not claim to know which of the various assessments was correct, the simple fact remains–the myriad of conflicting reports speak to the ultimate subjectivity of any evaluation. “Legal authority” became hitched to the value of mortgage-backed securities, and in 2008 their value had become dangerously opaque. In discussing the Fed’s actions, it is necessary to point out that the Federal Reserve has a rare ability to value assets more liberally than a comparable private party–they are able to hold distressed assets for longer and ultimately exert incredible influence over any securities’ final value as they control monetary policy. The Dissenting Statement of the FCIC report aptly reveals that Fed leaders could have simply guided their staff to “re-evaluate [Lehman’s balance sheet] in a more optimistic way to justify a secured loan;” however, they elected not to do so since such action did not align with their private, practical interests (8). The “law” could have been molded in either direction–the Fed consciously chose the direction of nonintervention just as easily as they could have chosen the opposite. iii. The Fed’s “Practical” and Deliberate Choice Section 13(3) had been invoked just five months earlier in March 2008, when the Fed extended a $29 billion loan to facilitate JP Morgan’s purchase of a differ- ent failing firm, Bear Stearns. In an effort to separate the Fed’s handling of Bear Stearns from Lehman, Bernanke admits that considerations behind each decision were both “ legal and practical ” (9). While in Bear Stearns case, practical judgement weighed in favor of intervention, in Lehman’s case, it did not: “if we lent the money to Lehman, all that would happen would be that the run [on Lehman] would succeed, because it wouldn’t be able to meet the demands, the firm would fail, and not only would we be unsuccessful, but we would [have] saddled the taxpayer with tens of billions of dollars of losses” (10). While an exhaustive display of arguments and testimonies that challenge the Fed’s claim of legal inability is cogent, perhaps the most chilling evidence lies in an unassuming and incisive question: “Since when did regulators let a lack of legal authority stop them? There was zero legal authority for the FDIC’s broad guarantee of bank holding debt. Saving Lehman would have been just one of many actions of questionable legality taken by regulators” (11). iv. Other Incriminating Facts: The Barclay’s Guarantee and Curtailed PDCF Lending An analysis of Lehman’s failure would be incomplete without discussing the Fed’s resounding lack of action during negotiations of a private rescue with Barclays, a critical moment in the crisis that could have salvaged the failing firm with- out contentious use of public money. Barclays began conversing with the U.S. Treasury Department a week prior to Lehman’s fall as they contemplated and hammered out terms of an acquisition (12). The planned buyout by the British bank would have gone through had the Fed agreed to guarantee Lehman’s trading obligations during the time between the initial deal and the final approval; yet, the Fed deliberately refused to intervene, masking their true motives behind a legal inability to offer a “‘naked guarantee’–one that would be unsecured and not limit- ed in amount” (13). However, since such a request for an uncapped guarantee never occurred, the Fed’s legal alibi is deceitfully misleading. In truth, Lehman asked for secured funding from the Fed’s Primary Dealer Credit Facility (PDCF), a liquidity window allowing all Wall Street firms to take out collateralized loans when cut off from market funding (“The Fed—Primary Dealer Credit Facility (PDCF),” n.d.). While Lehman would not have been able to post eligible collateral under the initial requirement of investment-grade securities, they likely would have been able to secure a loan under the expanded version of the program that accepted a broader range of collateral. The purposeful curtailment of the expanded collateral to Lehman is one of the most questionable aspects of the Lehman weekend, and is perhaps the most lucid evidence that the Fed made a deliberate choice to let the firm fail. The FCIC de- tails the murky circumstances and clear absence of an appropriate explanation for the act: “the government officials made it plain that they would not permit Lehman to borrow against the expanded types of collateral, as other firms could. The sentiment was clear, but the reasons were vague” (14). If there had been a rational ex- planation, regulators would have articulated it. Instead, they merely repeated that “there existed no obligation or duty to provide such information or to substantiate the basis for the decision not to aid or support Lehman” (15). The Fed’s refusal to provide PDCF liquidity administered the final nail in Lehman’s coffin–access to such a loan made the difference in Lehman being able to open for business that infamous morning. v. An Intriguing Lack of Evidence The Fed did not furnish the FCIC with any analysis to show that Lehman lacked sufficient collateral to secure a loan under 13(3), referencing only the estimates of other Wall Street firms and declining to respond to a direct request for “the dollar value of the shortfall of Lehman’s collateral relative to its liquidity needs” (16). Diverging from typical protocol, where the Fed’s office “wrote a memo about each of the [potential] loans under Section 13(3),” Lehman’s case contains no official memo. When pressed on this topic, Scott Alvarez, the General Counsel of the Board of Governors of the Federal Reserve, rationalized the opportune lack of evidence as an innocuous judgement call: “folks had a pretty good feeling for the value of Lehman during that weekend, and so there was no memo prepared that documented why it is we didn’t lend... they understood from all of [the negotiations] that there wasn’t enough there for us to lend against and so they weren’t willing to go forward” (17). While this absence of evidence does not prove that the Fed had access to a legal option, it highlights a disconcerting and suggestive vacancy in their claims. Consider an analogous courtroom case where a defendant exercises the right to remain silent rather than respond to a question that may implicate them–similarly, the Fed’s intentional evasion of the request for concrete evidence appears an incriminating insinuation of guilt. The lack of “paper trail” becomes even more confounding when coupled with the Fed’s inconsistent and haphazard statements justifying their decision. Only after the initial praise for the decision soured into a surge of public criticism did any mention of legality enter the public record. Nearly three weeks after Lehman’s fall on October 7th, Bernanke introduced a strategic “alibi:” “Neither the Treasury nor the Federal Reserve had the authority to commit public money in that way” (18). Bernanke insists that he will “maintain until [his] deathbed that [they] made every effort to save Lehman, but were just unable to do so because of a lack of legal authority” (19). However, when considering the subjectivity of “reasonable assurance” of repayment, the malleability of “legal authority,” and the convenient lack of evidence to undermine his statement, Bernanke’s “dying” claim becomes comically hollow. If the Fed had truly made “every effort” to rescue Lehman, they would have relied on more than a “pretty good feeling”–had they truly been sincere, the Federal Reserve, a team of seasoned economists, would have used hard numerical facts as guidance for a path forward. vi. The Broader Implications of “Secured to Satisfaction:” a Logical Fallacy While the Fed’s lack of transparency is unsettling, perhaps the most unnerving aspect of the entire Lehman episode is the precarious regulatory framework that the American financial system trusted during a crisis. The concept of “secured to satisfaction” is not the bullet-proof legal threshold painted by the media, rather it was a malleable moving target molded by the generosity of the Fed’s estimates and the fluctuating state of the economy, instead of precise mathematical facts. A 2018 article by Columbia Law Professor Kathryn Judge exposes the logical fallacy of Section 13(3)’s “secured to satisfaction,” citing how “subsequent developments can have a first order impact on both the value of the assets accepted as collateral and the apparent health of the firms needing support” (20). The “legal authority” of regulators to invoke Section 13(3) is a circular and empty concept, hitched to nebulous evaluations of complex and opaque securities, assets that were not only inherently hard to value but whose valuations could later be manipulated. By adjusting the composition of their balance sheet (Open Market Operations) and altering interest rates, the Fed guides the behavior of financial markets, thus subtly inflating (or deflating) the value of a firm’s collateral (21). Indeed, in the years following the government’s support of Bear Stearns and AIG, the Fed’s aggressive and novel monetary policy (close to zero interest rates and a large-scale program of quantitative easing) may have been “critical to making the collateral posted by [Bear Stearns and AIG] seem adequate to justify the central bank’s earlier actions’’ (22). Using collateral quality and solvency as prerequisites for lawful action is inherently problematic, since a firm’s health and the quality of their collateral are not factors given exogenously–they are endogenous variables that regulators them- selves play a critical role in determining. Thus, acceptance of the narrative that Lehman failed because the Fed lacked any legal authority to save it would be a naive oversight. Rather, Lehman failed because the Fed lacked the practical and political motivations to exploit the law. II. The Right Choice As Lehman’s downfall is both a politically contentious and emotionally charged topic, it is necessary to approach the morality of the Fed’s decision with sympathy and caution. In the following sections, I intend to illustrate why regulators made the right decision in allowing Lehman to fail by using non-partisan facts organized around four key arguments . (1) Lehman was not the watershed event of the Crisis. The market panic follow- ing September 2008 was a reaction to a collection of unstoppable, unrelated, and market-shaking events. (2) Lehman’s failure expunged the hazardous incentives carved into the financial landscape prior. Policymakers shrewdly chose long-term economic order over the short-term benefit of keeping a single firm afloat. (3) Failure was the “right” and only choice from a taxpayer’s perspective. (4) Lehman’s demise was a necessary catastrophe, creating circumstances so parlous that Congress passed TARP, landmark legislation that gave the Federal Reserve the authority that ultimately revived the financial system. (1) Lehman Was Not the Watershed Event of the Crisis For many people, the heated debate over whether regulators did the right thing in allowing Lehman to fail is synonymous with the larger question: “would rescuing Lehman have saved us from the Great Recession?” In the following section, I assert that Lehman was not the defining moment of the Financial Crisis (as is often construed in the media); rather, the global financial turmoil was irreversibly underway by September 2008 and the ensuing disaster could not have been simply averted by Lehman’s rescue. “ The problem was larger than a single failed bank – large, unconnected financial institutions were undercapitalized because of [similar, failed housing bets] ” (23). By Monday September 15, Bank of America had rescued the deteriorating Merrill Lynch and the insurance giant AIG was on the brink of failure–a testament to the critical detail that many other large financial institutions were also in peril due to losses on housing-related assets and a subsequent liquidity crisis. Indeed, in the weeks preceding Lehman’s failure, the interbank lending market had virtually froze, plunged into distress by a contagious spiral of self-fulfilling expectations. Unable to ascertain the location and size of subprime risk held by counterparties in the market, investors became panicked by the obscured and so ubiquitous risk of housing exposure, precipitously cutting off or restricting funding to other market participants. This perceived threat of a liquidity crisis triggered the downward spiral of the interbank lending market in the weeks preceding Lehman’s fall, a market which pumped vital cash into nearly every firm on Wall Street. The LIBOR-OIS spread, a proxy for counterparty risk and a robust indicator of the state of the interbank market, illustrates these “illiquidity waves” that severely impaired markets in 2008 (24). (Sengupta & Tam, 2008). As shown in the figure below, in the weeks prior to the failure of Lehman Brothers, the spread spiked dramatically, soaring above 300 basis points and portraying the cascade of panic and contraction of lending standards in the interbank market. The idea that Lehman was the key moment in the crisis might be accurate if nothing of significance happened before its failure; however, as I outline below this was clearly not the case. The quick succession of events occurring in September 2008 – events which would have occurred regardless of Lehman’s failure – triggered the global financial panic. A New Yorker article publishing a detailed timeline of the weekend exposes how AIG’s collapse and near failure was completely uncorrelated to Lehman (25). On Saturday September 13, AIG’s “looming multi-billion-dollar shortfall” from bad gambles on credit default swaps became apparent. Rescuing AIG became a top priority throughout the weekend, and on Tuesday, the day after Lehman filed for bankruptcy protection, the Fed granted an $85 billion emergency loan to salvage AIG’s investments (26). Given the curious timing, AIG’s troubles are often chalked up to be a market reaction to Lehman’s failure; however, proper facts expose the failures of AIG and Lehman as merely a close succession of unfortunate, yet unrelated events. In a similar light, the failure and subsequent buyouts of Washington Mutual (WaMu) and Wachovia, events that further rocked financial markets and battered confidence, would have occurred regardless of a Lehman bailout. Both commercial banks were heavily involved in subprime mortgages and were in deep trouble before Lehman. University of Oregon economist Tim Duy asserts that, even with a Lehman rescue, “the big mortgage lenders and regional banks [ie. WaMu and Wachovia] that were more directly affected by the mortgage meltdown likely wouldn’t have survived” (27). The financial system was precariously fragile by the fall of 2008 and saving Lehman would not have defused the larger crisis or ensuing market panic that erupted after September 2008. Critics of the Fed’s decision often cite how the collapse of Lehman Brothers be- gat the $62 billion Reserve Primary Fund’s “breaking of the buck” on Thursday, September 18 and precipitated a $550 billion run on money-market funds. Lehman’s dire effect on money and commercial paper markets is irrefutable; however, arguments that Lehman triggered this broader global financial panic neglect all relevant facts. The Lehman failure neither froze nor would a Lehman rescue have unfrozen credit markets, the key culprit responsible for the escalation and depth of the Crisis (28). Credit markets did not freeze in 2008 because the Fed chose not to bailout Lehman–they froze because of the mounting realization that mortgage losses were concentrated in the financial system, but nobody knew precisely where they lay. It was this creeping, inevitable realization, amplified by Lehman and the series of September events, that caused financial hysteria (29). As Geithner explains, “Lehman’s failure was a product of the forces that created the crisis, not the fundamental cause of those forces” (30). The core problems that catalyzed the financial market breakdown were an amalgamation of highly leveraged institutions, a lack of transparency, and the rapidly deteriorating value of mortgage-related assets–bailing out Lehman would not have miraculously fixed these problems. While such an analysis cannot unequivocally prove that regulators made the right decision in choosing to let Lehman fail, it offers a step in the right direction–the conventional wisdom that Lehman single-handedly triggered the collapse of confidence that froze credit markets and caused borrowing rates for banks to skyrocket is unfounded. While I have argued above that Lehman’s bankruptcy was not the sole trigger of the crisis, it was also not even the largest trigger. Research by Economist John Taylor asserts that Lehman’s bankruptcy was not the divisive event peddled by the media–using the LIBOR spread (the standard measure for market stress), Taylor found that the true ratcheting up of the crisis began on September 19, when the Fed revealed that they planned to ask Congress for $700 billion to defuse the crisis (31). Arguments advanced by mainstream media that saving Lehman would have averted the recession are naively optimistic and promote a dangerously inaccurate narrative on the events of 2007–2009. The failure of Lehman did indeed send new waves of panic through the economy; however, Lehman was not the only disturbance to rock financial markets in September of 2008 (32). This latter fact is of critical importance. (2) Lehman’s Collapse Caused Inevitable and Necessary Market Change “The inconsistency was the biggest problem. The Lehman decision abruptly and surprisingly tore the perceived rule book into pieces and tossed it out the window.” –Former Vice Chairman to the Federal Reserve Alan Blinder (33). Arguments that cite the ensuing market panic and erosion of confidence that erupted after Lehman’s failure are near-sighted and fail to appreciate the larger picture motivating policy makers’ decision. Regulators’ decision not to rescue the then fourth largest investment bank, an institution assumed “too big to fail,” dispensed a necessary wake-up call to deluded and unruly Wall Street firms, which had been lulled into a costly false sense of security. The question of whether regulators did the right thing in allowing Lehman to fail cannot be studied in a vacuum; it must be considered alongside the more consequential question of whether regulators made the right decision in saving Bear Stearns. In 2007, the Fed’s extension of a $29 billion loan to Bear Stearns rewrote the tacit rules that had governed the political and fiscal landscape for centuries, substantiating the notion that institutions could be “too big or too interconnected to fail.” The comforting assumption that regulators would intervene to save every systemically important institution from failure was a turning point in the crisis, “setting the stage for [the financial carnage] that followed” (34). After the Bear Stearns intervention, regulators faced a formidable and insuperable enemy: the inexorable march of time. It would be an unsustainable situation for the government to continue bailing out every ailing financial firm. “These officials would have eventually had to say ‘no’ to someone, sometime. The Corps of Financial Engineers drew the line at Lehman. They might have been able to let the process run a few weeks more and let the bill get bigger, but ultimately, they would have had to stop. And when they did expectations would be dashed and markets would adjust. If Lehman had been saved, someone else would have been allowed to fail. The only consequence would be the date when we commemorate the anniversary of the crisis, not that the crisis would have been forever averted. ” (35). The Lehman decision corrected the costly market expectations created by Bear Stearns’ rescue and restored efficiency and discipline to markets. Throughout the crisis, policymakers, unable to completely avoid damage, were forced to decide which parties would bear losses. Lehman’s demise was a reincarnation and emblem of their past decisions–their precedent of taxpayer burden had further encouraged Wall Street’s excessive leverage and reckless behavior (36). Saving Lehman would have simply hammered these skewed incentives further into markets, putting the long-term stability and structure of capitalist markets at risk. Taxpayers would have been forced to foot a bill regardless of the Fed’s final decision: if not directly through a bailout, then indirectly through layoffs and economic turmoil (37). Instead of saddling taxpayers with the lingering threat of a large bill in the future, the Fed made the prudent and far-sighted decision to hand them a smaller bill today. The Fed heeded the wisdom of the age-old adage, “better the devil you know than the devil you don’t.” Put simply, the economic “calculus” of policymakers was correct. While rescuing Lehman may have seemed tantalizing at the time, the long-term costs would have been far more consequential than the short-term benefits (38). Political connotations often accompany this argument, evocative of what some have christened the Fed’s “painful yet necessary lesson on moral hazard;” however, partisan beliefs are extraneous to the simple, economic facts of the matter. From a fiscal perspective, policymakers made the right choice to let Lehman fail by shrewdly choosing long-term economic order over short-term benefits. (3) The Right Decision from a Taxpayers’ Perspective Given financial markets’ complete loss of confidence in Lehman and the unnervingly fragile state of the economy, an attempt at a Lehman rescue (within or above the law) would not only have been a fruitless, but also a seriously unjust use of taxpayer dollars. The health of an investment bank hinges upon the willingness of customers and counterparties to deal with it, and according to former Secretary Geithner, “that confidence was just gone” (39). By the weekend, the market had already lost complete confidence in Lehman: “no one believed that the assets were worth their nominal value of $640 billion; a run on its assets was already underway, its liquidity was vanishing, and its stock price had fallen by 42% on just Friday September 12th; it couldn’t survive the weekend” (40). For all practical purposes, the markets had sealed Lehman’s fate and a last-minute government liquidity line could have done nothing to change it. In testimony, Bernanke aptly characterizes a loan to supplant the firms’ disappearing liquidity as a prodigal expenditure, “merely wast- ing taxpayer money for an outcome that was unlikely to change” (41). After the fallout of the Barclays deal, many experts have argued that the Fed should have provided liquidity support during a search for another buyer, since temporary liquidity assistance from the government might have extinguished the escalating crisis. However, such an open-ended government commitment that allowed Lehman to shop for an “indefinite time period” would have been an absurd waste of public money (42). If the Fed had indeed provided liquidity aid up to some generous valuation of Lehman’s collateral, “the creditors to Lehman could have cashed out 100 cents on the dollar, leaving taxpayers holding the bag for losses” (43). The loan would not have prevented failure, but only chosen which creditors would bear Lehman’s losses at the expense of others. On September 15, “Lehman [was] really nothing more than the sum of its toxic assets and shattered reputation as a venerable brokerage”(44). It would have been an egregious abuse of the democratic tax system if the government were to bail out Lehman, leaving the public at the whims of the fragile financial markets and saddling them with an uncapped bill for Wall Street’s imprudence. While virulent rumors of Lehman’s failure as political save-face by regulators may prevail in mainstream media, I maintain that the Fed’s deci- sion was the right one for the American public (45). (4) TARP: Lehman Begat the Legislation that Revived the Financial System In considering the relative importance of Lehman as the cause of the crisis, scholars must also consider the more nuanced and hard-hitting counterpart: “How important was Lehman as a cause of the end of the Crisis? ” While in the context of the suffering caused by the Great Recession and the polarizing rhetoric of “bailing out banks,” this question is politically unpopular; I broach it nonetheless, since it is an important facet of the debate on whether regulators made the “right decision.” Lehman’s failure was vitally important to the end of the Crisis–it allowed the Troubled Asset Relief Program (TARP) to pass Congress, a critical piece of legislation that equipped regulators with the tools ultimately necessary to repair the financial system (46). Every previous effort of the Fed (creating the PDCF, rescuing Bear Stearns, the conservatorship of Fannie and Freddie) was not enough to salvage the deteriorating financial system–by September 2008 “Merrill Lynch, Lehman, and AIG were all at the edge of failure, and Washington Mutual, Wachovia, Goldman Sachs, and Morgan Stanley were all approaching the abyss” (47). The Fed needed the authority to inject capital into the financial system, and as described in Naomi Klein’s The Shock Doctrine , Lehman’s unexpected fall acted as the final catastrophic spark necessary to “prompt the hasty emergency action involving the relinquishment of rights and funds that would otherwise be difficult to pry loose from the citizenry” (48). With authority to inject up to $700 billion of capital into suffering non-bank institutions, TARP preserved the crumbling financial system by inspiring them to lend again. The government offered $250 billion in capital to the nine most systemically important institutions, and used $90 billion in TARP financing to save the teetering financial giants, Bank of America and Citigroup (49). Exactly how much credit TARP deserves for averting financial catastrophe is unclear, yet the fact remains that coupled with Geithner’s Stress Tests, TARP helped stop the county’s spiral into what could have been a crisis as dire as the Great Depression. IV. Conclusion In this essay, I have shown that the Fed exploited the vagueness of Section 13(3) to ad- vance their political, economic, and moral agenda to let Lehman fail, and asserted that policymakers made the right choice in allowing Lehman to fail (weighing economic facts, the implications of future economic landscape, taxpayers’ rights, and the passage of land- mark legislation). It may have been easier for regulators to hide behind legal jargon and technicalities than to defend the economic rationale and practicality of their onerous decision to an audience of distressed Americans; however, this ease is not without the costs of continued confusion, misleading conventional wisdom, and bitter citizenry. Lehman’s bankruptcy will forever be synonymous with the financial crisis and (resulting) wealth destruction.” -Paul Hickey, founder of Bespoke Investment Group (50). Lehman’s failure left an indelible mark in history and a tireless refrain of diverging and potent emotions towards regulators: contempt for the Fed that “triggered the Crisis,” disdain for the government that bailed out Wall Street with TARP, and hatred of impressionable leaders who “bowed” to political pressure. It is indeed easier to accept a visceral and tangible moment like Lehman’s failure as a cause of suffering than the nihilistic and elusive fact that the buildup of leverage and the burst of the housing bubble caused the crisis. However, it is not enough for only academics and policymakers to understand that “Lehman’s failure was a product of the forces that created the crisis, not a fundamental cause of those forces” (51). Conventional wisdom must be rewritten for the sake of faith in the government and the prevention of future crises. Our acceptance of why Lehman was allowed to die must move beyond the apportioning of responsibility or the distribution of reparations–we must redirect the futile obsession over the legality and morality of the Fed’s decision towards the imbalances in the financial system that caused the Crisis to begin with. Endnotes 1 Public Affairs, The Financial Crisis Inquiry Report, 340. 2 Ibid. 3 Clark, “Lehman Brothers Rescue Would Have Been Unlawful, Insists Bernanke.” 4 Judge, “Lehman Brothers: How Good Policy Can Make Bad Law.” 5 Fettig, The History of a Powerful Paragraph. 6 Ball, The Fed and Lehman Brothers, 5. 7 Stewart, Eight Days. 8 Public Affairs, The Financial Crisis Inquiry Report, 435. 9 Public Affairs, The Financial Crisis Inquiry Report, 340. 10 Ibid. 11 Calabria, “Letting Lehman Fail was a Choice, and It Was the Right One.” 12 Chu, “Barclays Ends Talks to Buy Lehman Brothers.” 13 Ball, The Fed and Lehman Brothers. 14 Public Affairs, The Financial Crisis Inquiry Report, 337. 15 Ball, The Fed and Lehman Brothers, 141. 16 Ibid, 11. 17 Ibid, 133. 18 J.B. Stewart and Eavis, “Revisiting the Lehman Brothers Bailout that Never Was.” 19 Ibid. 20 Judge, “Lehman Brothers: How Good Policy Can Make Bad Law.” 21 Tarhan, “Does the federal reserve affect asset prices? 22 Judge, “Lehman Brothers: How Good Policy Can Make Bad Law.” 23 Public Affairs, The Financial Crisis Inquiry Report, 433. 24 Sengupta & Tam. 25 J.B. Stewart, “Eight Days.” 26 Public Affairs, The Financial Crisis Inquiry Report, 435. 27 O’Brien, “Would saving Lehman have saved us from the Great Recession?” 28 Ibid. 29 Public Affairs, The Financial Crisis Inquiry Report, 436. 30 Geithner & Metrick, Ten Years after the Financial Crisis: A Conversation with Timothy Geithner. 31 Skeel, “History credits Lehman Brothers’ collapse for the 2008 financial crisis. Here’s why that narrative is wrong.” 32 Public Affairs, The Financial Crisis Inquiry Report, 436. 33 J.B. Stewart and Eavis, “Revisiting the Lehman Brothers Bailout that Never Was.” 34 Skeel, “History credits Lehman Brothers’ collapse for the 2008 financial crisis. Here’s why that narrative is wrong.” 35 Reinhart, “A Year of Living Dangerously: The Management of the Financial Crisis in 2008.” 36 Ibid. 37 Antoncic, “Opinion | Lehman Failed for Good Reasons.” 38 Reinhart, “A Year of Living Dangerously: The Management of the Financial Crisis in 2008.” 39 Geithner & Metrick, Ten Years after the Financial Crisis: A Conversation with Timothy Geithner. 40 J.B. Stewart, “Eight Days.” 41 Public Affairs, The Financial Crisis Inquiry Report, 435. 42 Ibid. 43 Ibid. 44 Grunwald, “The Truth About the Wall Street Bailouts.” 45 Erman, “Five years after Lehman, Americans still angry at Wall Street: Reuters/Ipsos poll.” 46 Geithner & Metrick, Ten Years after the Financial Crisis: A Conversation with Timothy Geithner. 47 Ibid. 48 Erman, “Five years after Lehman, Americans still angry at Wall Street: Reuters/Ipsos poll.” 49 J.B. Stewart, “Eight Days.” 50 Straders, “The Lehman Brothers Collapse and How It’s Changed the Economy Today.” 51 Geithner & Metrick, Ten Years after the Financial Crisis: A Conversation with Timothy Geithner. Bibliography Antoncic, M. (2018, September). Opinion | Lehman Failed for Good Reasons. The New York Times . Retrieved from https://www.nytimes.com/2018/09/17/ opinion/lehman-brothers- financial-crisis.html Ball, L. (2016). THE FED AND LEHMAN BROTHERS . 218. Calabria, M. (2014). Letting Lehman Fail Was a Choice, and It Was the Right One | Cato Institute. Retrieved December 7, 2019, from https://www. cato.org/publications/commentary/letting-lehman-fail-was-choice-it-was- right-one Chu, Kathy. 2008. “Barclays Ends Talks to Buy Lehman Brothers.” ABC News . Retrieved January 3, 2021, from https://abcnews.go.com/Business/sto- ry?id=5800790&page=1 Clark, Andrew. 2010. “Lehman Brothers Rescue Would Have Been Unlaw- ful, Insists Bernanke.” The Guardian . Retrieved January 1, 2021 (http:// www.theguardian.com/business/2010/sep/02/lehman-bailout-unlaw- ful-says-bernanke). Erman, M. (2013, September 15). Five years after Lehman, Americans still angry at Wall Street: Reuters/Ipsos poll. Reuters . Retrieved from https://www. reuters.com/article/us-wallstreet- crisis-idUSBRE98E06Q20130915 Fettig, D. (2008, June). The History of a Powerful Paragraph | Federal Reserve Bank of Minneapolis . https://www.minneapolisfed.org:443/article/2008/the-histo- ry-of-a- powerful-paragraph Geithner, T., & Metrick, A. (2018). Ten Years after the Financial Crisis: A Conver- sation with Timothy Geithner . Retrieved from https://www.ssrn.com/ab- stract=3246017 Grunwald, M. (2014, September). The Truth About the Wall Street Bailouts | Time. Retrieved December 7, 2019, from https://time.com/3450110/ aig-lehman/ Kathryn Judge. (2018, September 11). Lehman Brothers: How Good Policy Can Make Bad Law. Retrieved December 3, 2019, from CLS Blue Sky Blog website: http://clsbluesky.law.columbia.edu/2018/09/11/lehman-brothers- how-good-policy-can-make-bad-law/ O’Brien, M. (2018, September). Would saving Lehman have saved us from the Great Recession? - The Washington Post. Retrieved December 4, 2019, from https://www.washingtonpost.com/business/2018/09/20/would-sav- ing-lehman-have- saved-us-great-recession/ Reinhart, V. (2011). A Year of Living Dangerously: The Management of the Fi- nancial Crisis in 2008. Journal of Economic Perspectives , 25 (1), 71–90. Re- trieved from https://doi.org/10.1257/jep.25.1.71 Skeel, D. (2018, September 20). History credits Lehman Brothers’ collapse for the 2008 financial crisis. Here’s why that narrative is wrong. Retrieved November 17, 2019, from Brookings website: https://www.brookings.edu/ research/history-credits-lehman-brothers-collapse-for- the-2008-financial- crisis-heres-why-that-narrative-is-wrong/ Spector, S. C. and M. (2010, March 13). Repos Played a Key Role in Lehman’s Demise. Wall Street Journal . Retrieved from https://www.wsj.com/articles/ SB10001424052748703447104575118150651790066 Sraders, A. (2018). The Lehman Brothers Collapse and How It’s Changed the Economy Today. Retrieved December 9, 2019, from Stock Market—Busi- ness News, Market Data, Stock Analysis—TheStreet website: https://www. thestreet.com/markets/lehman-brothers- collapse-14703153 Stewart, J.B. (2009, September). Eight Days | The New Yorker. Retrieved De- cember 7, 2019, from https://www.newyorker.com/magazine/2009/09/21/ eight-days Stewart, J. B., & Eavis, P. (2014, September 29). Revisiting the Lehman Brothers Bailout That Never Was. The New York Times . Retrieved from https://www. nytimes.com/2014/09/30/business/revisiting-the-lehman-brothers-bail- out-that-never- was.html Tarhan, V. (1995). Does the federal reserve affect asset prices? Journal of Econom- ic Dynamics and Control , 19 (5), 1199–1222. Retrieved from https://doi. org/10.1016/0165-1889(94)00824- 2 The Fed—Primary Dealer Credit Facility (PDCF). (n.d.). Retrieved December 5, 2019, from https://www.federalreserve.gov/regreform/reform-pdcf.htm The Financial Crisis Inquiry Report . (2011). PublicAffairs. Previous Next

Rewriting the Antitrust Setlist: Examining the Live Nation-Ticketmaster Lawsuit and its Implications for Modern Antitrust Law Katya Tolunsky Author Malcolm Furman Arjun Ray Editors I. Introduction On November 15, 2022, the music industry witnessed an unprecedented event that would become a turning point in discussions about ticketing practices and market dominance. Millions of devoted Taylor Swift fans were devastated when they failed to secure tickets for the highly anticipated Eras Tour. The ticket release sparked chaos, with fans enduring hours–even days–on Ticketmaster’s website, battling extended delays, technical glitches, and unpredictable price fluctuations. Despite their unwavering persistence, many “Swifties” were left empty-handed. This high-profile debacle ignited a firestorm of criticism from politicians and consumers alike, who questioned Ticketmaster’s apparent lack of preparedness for the overwhelming demand. While not an isolated incident of consumer dissatisfaction, the scale of this event and the passionate outcry from Swift’s fan base catapulted long-standing issues with ticket availability, pricing, and fees into the national spotlight. The “Swift ticket fiasco” became a catalyst for broader scrutiny of Ticketmaster’s business practices. Lawmakers and consumer advocacy groups called for investigations into the company’s business model, while accusations circulated about Ticketmaster leveraging its market power to stifle competition and maintain high fees. This perfect storm of events set the stage for a renewed examination of antitrust concerns in the live entertainment industry, bringing the anticompetitive practices of Live Nation-Ticketmaster into the public political and legal spotlight. On May 23, 2024, the U.S. Department of Justice (DOJ) filed a civil antitrust lawsuit against Live Nation Entertainment (the merged company) for allegedly violating the terms of a 2010 settlement, which required Ticketmaster to license its software to competitors and prohibited Live Nation from retaliating against venues that use competing ticketing services, and engaging in anticompetitive practices. The DOJ’s complaint argues that Live Nation has used its control over concert venues and artists to pressure venues into using Ticketmaster and to punish those that don’t, effectively excluding rival ticketing services from the market. the DOJ is suing Live Nation-Ticketmaster for violating Section 2 of the Sherman Antitrust Act and monopolizing markets across the live concert industry. This suit raises important questions about the application of the Sherman Act and the evolving approach to antitrust enforcement in the United States. At the heart of this case lies a fundamental clash between two competing philosophies of antitrust enforcement. For decades, the Chicago School approach has dominated American antitrust law, focusing narrowly on consumer welfare through the lens of prices and economic efficiency. However, a new perspective has emerged to challenge this framework. The “New Brandeis” movement, named after Supreme Court Justice Louis Brandeis and championed by current FTC Chair Lina Khan, advocates for a broader understanding of competition law that considers market structure, concentration of economic power, and impacts on democracy—not just consumer prices. As this movement antitrust movement gains prominence and momentum, the Live Nation-Ticketmaster case represents a critical test for the application of Section 2 of the Sherman Act in the digital age. The outcome of this case will set important precedents for how antitrust law is applied to companies that dominate multiple interconnected markets. This paper seeks to analyze the evolution of antitrust law in the context of this Live Nation-Ticketmaster lawsuit. First, this paper details the 2010 LiveNation/Ticketmaster merger, the extensive criticism of this merger, and the terms of the merger. Second, this paper delves into the relevant history of the Sherman Antitrust Act and the evolution and enforcement of antitrust and monopoly law in the last one hundred years. Additionally, to illustrate the scope of anticompetitive behavior and ways in which past antitrust cases have been prosecuted, the paper examines several notable cases concerning Section 2 of the Sherman Act. Third, this paper explores the recent shift in approach, characterized by the New Brandeis movement, to antitrust law and the broader debate surrounding the purpose and scope of antitrust enforcement. Lastly, this paper seeks to situate the Live Nation-Ticketmaster lawsuit in the context of this debate and analyze the implications and potential outcomes of this suit. Ultimately, this paper seeks to show that the DOJ’s original approval of the Live Nation-Ticketmaster merger in 2010 with behavioral remedies was inadequate in preventing anticompetitive practices and protecting consumer interests, and that structural remedies (such as breaking up the company) are necessary to restore effective competition in the live entertainment industry. The Live Nation-Ticketmaster merger in 2010 and its subsequent negative impact on consumers and the live entertainment industry serve as an excellent example to illustrate the insufficient nature of the traditional consumer welfare-focused antitrust enforcement in addressing the complexities of modern markets, particularly in industries like live entertainment where vertical integration can lead to subtle forms of anticompetitive behavior. By examining how Live Nation's market power is reinforced through its data advantages and “flywheel” business model, this paper demonstrates why traditional antitrust frameworks struggle to address such modern competitive dynamics. Ultimately, this paper argues that the Live Nation-Ticketmaster case demonstrates the need for a broader interpretation and more aggressive enforcement approach of antitrust law, aligning with the New Brandeis approach. II. The Live Nation-Ticketmaster Merger: Antitrust Considerations and Regulatory Response In 2010, Live Nation, the world’s largest concert promoter, merged with Ticketmaster, the world’s dominant ticketing platform. At the time of the merger, Ticketmaster held an effective monopoly in the ticket sales market, with an estimated 80% market share for concerts in large venues. In 2008, Live Nation launched its own ticketing platform, positioning itself as a rival to Ticketmaster by offering competitive pricing, leveraging its existing relationships with venues and artists, and promising to reduce service fees. This direct competition in ticketing, combined with Live Nation's dominant position in concert promotion, posed a significant threat to Ticketmaster's monopoly, which the merger would eliminate. Critics argued that the merger would lead to higher ticket prices, reduced competition, and a worse experience for consumers. In his 2009 testimony before the Senate Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights, Senior Fellow for the American Progress Action Fund David Balto said, “Eliminating a nascent competitor by acquisition raises the most serious antitrust concerns…By acquiring Ticketmaster, Live Nation will cut off the air supply for any future rival to challenge its monopoly in the ticket distribution market.” Despite this widespread criticism of the proposed merger and its potential consequences, the DOJ approved the merger. However, the DOJ still recognized the potential threats and consumer criticism of the merger. In response to these concerns, the DOJ referred to the limits of antitrust enforcement, noting that the DOJ’s role is to prevent anticompetitive harms from mergers, not to remake industries or address all consumer complaints. In a speech delivered on March 18th, 2010, titled “The Ticketmaster/Live Nation Merger Review and Consent Decree in Perspective,” Assistant Attorney General for the Antitrust Division Christine A Varney said: “Our concern is with competitive market structure, so our job is to prevent the anticompetitive harms that a merger presents. That is a limited role: whatever we might want a particular market to look like, a merger does not provide us an open invitation to remake an industry or a firm’s business model to make it more consumer friendly…In the course of investigating this merger, we heard many complaints about trends in the live music industry, and many complaints from consumers about Ticketmaster. I understand that people view Ticketmaster’s charges, and perhaps all ticketing fees in general, as unfair, too high, inescapable, and confusing. We heard that it is impossible to understand the litany of fees and why those fees have proliferated. I also understand that consolidation has been going on in the industry for some time and the resultant economic pressures facing local management companies and promoters. Those are meaningful concerns, but many of them are not antitrust concerns. If they come from a lack of effective competition, then we hope to treat them as symptoms as we seek to cure the underlying disease. Where such issues concern consumer fairness, however, they are better addressed by other federal agencies.” Varney’s statement delineates a narrow view of the DOJ's role in merger review, focusing primarily on preventing specific antitrust violations rather than addressing broader consumer concerns or industry trends. This approach suggests that the DOJ saw its mandate as limited to addressing anticompetitive harms directly related to the merger, rather than using the merger review process to address wider industry problems or consumer dissatisfaction that fall outside the scope of antitrust law. The merger itself included both horizontal (direct competitors merging) and vertical (different levels of supply chain merging) integration concerns. The DOJ approved the merger with certain conditions: Ticketmaster had to sell Paciolan (its self-ticketing company), Ticketmaster had to license its software to Anschutz Entertainment Group (AEG), and most importantly, LiveNation was prohibited from retaliating against venues that use competing ticketing services. In the merger settlement, the DOJ stated that they would monitor compliance with the agreement for ten years and establish an Order Compliance Committee to receive reports of concerning behavior from industry players. The DOJ also emphasized the importance of industry participation in monitoring and reporting potential violations of the agreement or antitrust laws. These conditions were intended to address the most immediate competitive concerns raised by the merger. Thus, the DOJ primarily relied on behavioral remedies rather than structural changes, an approach that would later be criticized as insufficient to prevent anticompetitive practices. Structural changes, in contrast, could have involved more drastic measures such as requiring the divestiture of certain business units, breaking up the merged entity into separate companies, or imposing limitations on the company's ability to operate in multiple segments of the live entertainment industry. These types of structural remedies aim to fundamentally alter the company's market position and capabilities, rather than merely regulating its behavior. In addition, the reliance on industry self-reporting and time-limited monitoring also raised questions about the long-term effectiveness of these measures. In retrospect, the DOJ’s approach to the Live Nation-Ticketmaster merger exemplifies the limitations of traditional antitrust enforcement in addressing complex, vertically integrated industries. By focusing on narrow, immediate competitive effects and relying heavily on behavioral remedies, the DOJ underestimated the long-term impact of the merger on market dynamics in the live entertainment industry. This case would later become a touchstone in debates about the adequacy of existing antitrust frameworks and the need for more comprehensive approaches to merger review and enforcement. III. The Sherman Act and the Evolution of Antitrust Jurisprudence The Sherman Antitrust Act, passed in 1890, was a landmark piece of legislation that emerged from the economic and political turmoil of the late 19th century’s Gilded Age. This era saw rapid industrialization and the rise of powerful trusts and monopolies that dominated key industries such as oil, steel, and railroads. These business entities, through their immense economic power, were able to stifle competition, manipulate prices, and exert immense influence on the political process. Public outcry against these practices grew, with farmers, small business owners, and laborers demanding government action to curb corporate excess. In response to these concerns, the Sherman Act became the first federal legislation to outlaw monopolistic business practices, particularly by prohibiting trusts. A trust in this context was an arrangement by which stockholders in several companies would transfer their shares to a single set of trustees, receiving in exchange a certificate entitling them to a specified share of the consolidated earnings of the jointly managed companies. This structure allowed for the concentration of economic power that the Act sought to prevent. The Sherman Act outlawed all contracts and conspiracies that unreasonably restrained interstate and foreign trade. Its authors believed that an efficient free market system was only possible with robust competition. While the Act targeted trusts, it also addressed monopolies – markets where a single company controls an entire industry. While the Sherman Act broadly addresses anticompetitive practices, Section 2 is particularly relevant to analyze the Live Nation-Ticketmaster case as it directly pertains to monopolization. Section 2 of the Sherman Act specifically prohibits monopolization, attempted monopolization, and conspiracies to monopolize. Essentially, it outlaws the acquisition or maintenance of monopoly power through unfair practices. However, it’s important to note that the purpose of Section 2 is not to eliminate monopolies entirely, but rather to promote a market-based economy and preserve competition. This nuanced approach taken by Section 2 recognizes that some monopolies may arise from superior business acumen or innovation, and only seeks to prevent those achieved or maintained through anticompetitive means. The Sherman Act laid the foundation for antitrust law in the United States, reflecting a societal commitment to maintaining competitive markets and limiting the concentration of economic power. Its passage marked a significant shift in the government’s role in regulating business practices and shaping the economic landscape. While the Sherman Act laid the groundwork for antitrust law in the United States, it was supplemented by two important pieces of legislation in 1914: the Clayton Antitrust Act and the Federal Trade Commission Act. The Clayton Act expanded on the Sherman Act by prohibiting specific anticompetitive practices such as price discrimination, exclusive dealing contracts, tying arrangements, and mergers that substantially lessen competition. The Federal Trade Commission Act created the Federal Trade Commission (FTC) as an independent regulatory agency to prevent unfair methods of competition and deceptive acts or practices in commerce. Together, these Acts addressed some of the Sherman Act’s limitations and provided more specific guidelines for antitrust enforcement, further solidifying the government’s commitment to maintaining competitive markets. The distinction between the Clayton Act and Sherman Act is particularly relevant to understanding the Live Nation-Ticketmaster case. Section 7 of the Clayton Act governs merger review, requiring pre-emptive intervention to prevent mergers that may substantially lessen competition. In contrast, Section 2 of the Sherman Act addresses anticompetitive conduct by existing monopolists. The 2010 Live Nation-Ticketmaster merger was reviewed under Clayton Act Section 7’s forward-looking standard, while the 2024 case challenges ongoing anticompetitive conduct under Sherman Act Section 2. This dual application of antitrust law to the same company highlights the complementary yet distinct roles of merger review and monopolization enforcement. The early enforcement and interpretation of the Sherman Act were shaped by landmark cases that helped define the scope and application of antitrust law. In Standard Oil Co. of New Jersey v. United States (1911), the Supreme Court established the “rule of reason” approach to analyzing antitrust violations. This case resulted in the breakup of Standard Oil, demonstrating the Act’s power to dismantle monopolies. The Court held that only “unreasonable” restraints of trade were prohibited, introducing a more limited interpretation of the Act. The “rule of reason” approach meant that the Court would consider the specific facts and circumstances of each case to determine whether a particular restraint of trade was unreasonable. The case also established that the Sherman Act should be interpreted in light of its broad policy goals rather than strictly construed. This approach had a significant impact on future antitrust enforcement. It allowed for a more flexible and adaptive application of the Act, enabling courts and regulators to address new forms of anticompetitive behavior as markets evolved. This interpretive framework empowered enforcers to look beyond the literal text of the Act and consider the overarching aims of promoting competition and protecting consumer welfare. As a result, antitrust enforcement could more effectively respond to changing economic conditions and business practices, particularly as industries became more complex and interconnected in the 20th century. Later, in United States v. Alcoa (1945), the Court of Appeals for the Second Circuit further refined the interpretation of the Sherman Act. Judge Learned Hand’s opinion clarified that merely possessing monopoly power is not illegal; rather, the Act prohibits the deliberate acquisition or maintenance of that power through exclusionary practices. Alcoa thus established an important distinction between achieving monopoly through superior skill, foresight, and industry, which is lawful, and maintaining it through anticompetitive conduct, which violates the Act. These cases illustrate the evolving understanding of the Sherman Act, moving from a strict interpretation to a more nuanced approach that considered market dynamics and the effects of business practices on competition. The mid-20th century saw a significant shift in antitrust enforcement characterized by a structural approach that focused on market concentration and firm size. This era, roughly spanning from the late 1930s to the early 1960s, was characterized by a prevailing view among federal antitrust authorities, economists, and policymakers that high market concentration was inherently harmful to competition. The passage of the Celler-Kefauver Act in 1950, which strengthened merger control, exemplified this approach. Influenced by economists from the Harvard School of industrial organization, particularly Joe Bain, antitrust authorities presumed that market structure determined conduct and performance. This “structure-conduct-performance” paradigm, central to the Harvard School's approach, posited that industry structure (like concentration levels) directly influenced firm behavior and market outcomes. This led to aggressive enforcement actions, including the breakup of large firms and the blocking of mergers that would have significantly increased market concentration. However, by the mid-1960s, antitrust thinking began to evolve, considering both market structure and firm conduct. This shift was reflected in the landmark 1966 Supreme Court case United States v. Grinnell Corp. , which established the modern two-part test for monopolization. The Grinnell test requires proof of both “the possession of monopoly power in the relevant market” and “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” This test, while still considering market power, introduced a focus on how that power was obtained or maintained. While the earlier era did consider power acquisition to some extent, the Grinnell test formalized and emphasized this aspect. It required a more comprehensive examination of a firm’s conduct and its effects on competition, moving beyond the primarily structural approach that often presumed anticompetitive effects from high market concentration alone. The Grinnell test has since been widely applied in monopolization cases under Section 2 of the Sherman Act, reflecting a more nuanced approach that aims to preserve competition without necessarily eliminating all monopolies. This evolution in antitrust enforcement demonstrates a move towards balancing concerns about market structure with considerations of firm conduct and efficiency. However, this balanced approach would soon give way to a more dramatic shift in antitrust philosophy that prioritized economic efficiency above other considerations. During the 1970s and 1980s, the Chicago School of Economics profoundly influenced the trajectory and scope of antitrust law and policy in the United States. This approach, led by economists and legal scholars such as Robert Bork, Richard Posner, and George Stigler, represented a significant shift in antitrust thinking. The Chicago School advocated for the “consumer welfare” standard as the primary goal of antitrust policy. This approach focused on economic efficiency and lower prices for consumers, rather than protecting competitors or maintaining a particular market structure. They argued that many practices previously considered anticompetitive could actually benefit consumers through increased efficiency. For example, Chicago School theorists argued that many mergers, even those that increased market concentration, could lead to efficiencies that benefit consumers. These efficiencies could manifest in several ways: through economies of scale that reduce production costs and potentially lower prices; through improved resource allocation that enhances product quality or variety; or through increased innovation. The Chicago School contended that these efficiency gains could outweigh potential negative effects of increased market concentration, ultimately resulting in net benefits for consumers in the form of lower prices, better products, or increased innovation. This led to a more lenient approach to DOJ merger review, with a higher bar for proving that a merger would harm competition. Vertical mergers (between companies at different levels of the supply chain) were viewed particularly favorably, as they were seen as potentially efficiency-enhancing. The Chicago School was skeptical of claims that vertical integration or vertical restraints (like exclusive dealing arrangements) were inherently anticompetitive. They argued that these practices often had pro-competitive justifications and should be judged based on their economic effects rather than per se rules. The Chicago School was driven by a strong belief in the self-correcting nature of markets. This thinking greatly influenced antitrust enforcement agencies and courts during the Reagan administration and beyond. It led to a significant reduction in antitrust enforcement actions and a higher bar for proving anticompetitive harm. This shift represented a move away from the structural approach of the mid-20th century towards a more economics-focused, effects-based analysis of competitive harm. Antitrust attorney William Markham offers a scathing critique of the consumer welfare standard’s impact on antitrust enforcement. He argues that since the late 1970s, courts have adopted increasingly restrictive antitrust doctrines based on this standard, which he views as misnamed and harmful to consumers. Markham contends that these doctrines have allowed various forms of monopolistic and anticompetitive practices to flourish unchecked. He states that the standard permits such practices “so long as the offenders take care not to charge prices that are demonstrably and provably supracompetitive.” This critique highlights how the narrow focus on consumer prices under the consumer welfare standard may overlook other forms of competitive harm. It’s important to understand this context when examining more recent developments and debates in antitrust law, including the challenges posed by digital markets and the arguments of the New Brandeis movement. IV. Judicial Interpretation of Section 2: Key Cases and Anticompetitive Practices To better understand how Section 2 of the Sherman Act has been applied in practice, it’s important to examine key antitrust cases that have shaped its interpretation and enforcement. These cases not only illustrate various types of anti-competitive practices but also demonstrate the evolution of antitrust thinking, particularly the rising influence of the Chicago School’s consumer welfare standard and subsequent challenges to this approach. Anticompetitive practices can take many forms, including refusals to deal, predatory pricing, tying, and exclusive dealing arrangements. Their legality often depends on specific facts, market conditions, and the prevailing economic theories of the time. This section examines several landmark cases that highlight these practices and trace the trajectory of antitrust law from the mid-1980s through the early 2000s, a period marked by significant shifts in antitrust philosophy and enforcement approaches. The 1985 Supreme Court case Aspen Skiing Co. v. Aspen Highlands Skiing Corp. marked a significant development in antitrust law’s approach to refusal to deal practices, a type of anticompetitive behavior where a firm with market power declines to do business with a competitor. The case involved Aspen Skiing Company, which owned three of four ski areas in Aspen, CO, discontinuing a long-standing joint lift ticket program with Aspen Highlands, the owner of the fourth area. While the Chicago School approachgenerally viewed refusals to deal as permissible, the Court in this case took a different stance. It ruled that this refusal to continue a voluntary cooperative venture could violate Section 2 of the Sherman Act, as it lacked any normal business justification and appeared designed to eliminate competition. This decision, occurring early in the ascendancy of the Chicago School, demonstrated a willingness to consider factors beyond short-term consumer welfare in antitrust analysis. Justice Stevens’ opinion emphasized the importance of intent in determining whether conduct is “exclusionary,” “anticompetitive,” or “predatory,” introducing a more contextualized approach to assessing market behavior. While not fully embracing the consumer welfare standard, the Court did consider the impact on consumers, noting that the joint ticket was popular and its elimination inconvenienced skiers. This case thus represents a crucial step in the evolution of antitrust law, bridging the gap between earlier, more aggressive interpretations of the Sherman Act and the more economics-focused analyses that would follow. It expanded the scope of antitrust enforcement by establishing that, in some cases, even a unilateral refusal to deal could be considered anticompetitive. Aspen Skiing set the stage for later cases dealing with complex market dynamics, particularly in industries where control over key resources or platforms can significantly impact competition – a concept that becomes increasingly relevant in the digital age and in cases like the Live Nation-Ticketmaster merger. As antitrust thinking continued to evolve, the influence of the Chicago School became more pronounced, as evidenced in subsequent landmark cases. This shift was reinforced by changes in the Supreme Court’s composition during the 1970s and 1980s, with appointments by Presidents Nixon and Reagan bringing more conservative justices to the bench who were often sympathetic to Chicago School economic theories. This changing court composition, coupled with the growing academic influence of the Chicago School, contributed to the changes in antitrust jurisprudence. The 1993 Supreme Court case Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. marked a significant move in the treatment of predatory pricing claims, reflecting the growing dominance of the Chicago School’s consumer welfare standard. Predatory pricing occurs when a firm prices its products below cost with the intention of driving competitors out of the market, allowing the predator to later raise prices and recoup its losses. In this case, the Brooke Group accused Brown & Williamson of predatory pricing in the generic cigarette market. The Court established a two-pronged test for predatory pricing: (1) the plaintiff must prove that the prices are below an appropriate measure of cost, and (2) the plaintiff must demonstrate that the predator had a “reasonable prospect” of recouping its losses. This stringent standard, making predatory pricing claims extremely difficult to prove, clearly reflects the Chicago School’s skepticism towards such claims against firms. The Court’s reasoning prioritized short-term consumer benefits (lower prices) over long-term competitive concerns, embodying the consumer welfare standard. Justice Kennedy’s majority opinion explicitly cited Chicago School scholars, demonstrating how economic theory had come to dominate antitrust jurisprudence. This case illustrates how the Chicago School approach narrowed the scope of antitrust enforcement, potentially allowing some anticompetitive practices to escape scrutiny if they resulted in short-term consumer benefits. In the context of cases like Live Nation-Ticketmaster, this ruling underscores the challenges in proving anticompetitive behavior when short-term consumer benefits are present. The rise of the digital economy in the late 1990s and early 2000s presented new challenges to antitrust enforcement, leading to a reconsideration of established doctrines. While the Chicago School’s influence remained strong, the emergence of new technologies and business models began to test the limits of its consumer welfare-focused approach. The United States v. Microsoft Corp. (2001) case marked a pivotal moment in antitrust law’s application to the emerging digital economy, introducing new considerations for tying and monopoly maintenance in software markets. Tying occurs when a company requires customers who purchase one product to also purchase a separate product, potentially leveraging dominance in one market to gain advantage in another. The U.S. government accused Microsoft of illegally maintaining its monopoly in the PC operating systems market by tying its Internet Explorer browser to the Windows operating system and engaging in exclusionary contracts with PC manufacturers and Internet service providers. This case challenged the Chicago School's typically permissive view of tying arrangements, which often saw them as enhancing efficiency from a consumer welfare standpoint. The Court of Appeals for the D.C. Circuit ruled that Microsoft had violated Section 2 of the Sherman Act, finding that Microsoft’s practices, in aggregate, served to maintain its monopoly power by stifling competition from potential disruptors like Netscape’s browser and Sun’s Java technologies. While the court’s analysis still employed the consumer welfare standard, it showed a willingness to consider a broader range of anticompetitive effects, including harm to innovation and potential future competition. This approach reflected a nuanced evolution of antitrust thinking, acknowledging the unique characteristics of software markets and the rapid pace of technological change. Microsoft set important precedents for how antitrust law could be applied to fast-moving technology markets and platform economies, influencing later cases involving tech giants and potentially informing the analysis of platform-based businesses like Live Nation-Ticketmaster. It demonstrated that even in the era of Chicago School dominance, courts could adapt antitrust principles to address new forms of market power in the digital age. The resulting settlement, which imposed behavioral remedies rather than structural ones, sparked ongoing debates about the adequacy of traditional antitrust tools in addressing the unique characteristics of digital markets. Despite the more comprehensive and context-specific approach in Microsoft , the influence of the Chicago School remained strong, as demonstrated in the next significant case. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP (2004) significantly narrowed the scope of antitrust liability for refusal to deal, revisiting and limiting the principles established in Aspen Skiing . In this case, Trinko, a law firm and Verizon customer, alleged that Verizon had violated Section 2 of the Sherman Act by providing insufficient assistance to new competitors in the local telephone service market, as required by the 1996 Telecommunications Act. The Court, in a unanimous decision authored by Justice Antonin Scalia, ruled in favor of Verizon, significantly limiting the circumstances under which a refusal to deal could violate antitrust law. Unlike in Aspen Skiing , where there was a history of voluntary cooperation, the Court emphasized that firms, even monopolists, generally have no duty to assist competitors. This ruling clearly reflects the Chicago School’s skepticism towards government intervention in markets and its focus on efficiency over other competitive concerns. The Court emphasized the importance of allowing firms to freely choose their business partners, arguing that forced cooperation could reduce companies’ incentives to invest and innovate. This aligns with the Chicago School’s concern about “false positives” in antitrust enforcement – the idea that overly aggressive antitrust action might mistakenly punish pro-competitive behavior, potentially discouraging beneficial business practices. By setting a high bar for refusal to deal claims, the Trinko decision further constrained the reach of antitrust law, potentially allowing monopolists more leeway in their dealings with competitors. By setting a high bar for refusal to deal claims, the Trinko decision further constrained the reach of antitrust law, potentially allowing monopolists more leeway in their dealings with competitors. This legal environment, which emphasized a narrow interpretation of anticompetitive behavior, set the stage for future mergers that consolidated market power across related industries. The 2010 approval of the Live Nation-Ticketmaster merger is a prime example of how this permissive approach to antitrust enforcement allowed for the creation of a vertically integrated entity with unprecedented control over the live entertainment industry. This case exemplifies how the Chicago School approach may have inadvertently created blind spots in antitrust enforcement, particularly regarding the long-term effects of monopoly power on innovation and competition. These cases collectively demonstrate the complex evolution of Section 2 application across various industries and business practices. From the nuanced approach in Aspen Skiing , through the height of Chicago School influence in Brooke Group and Trinko , to the adaptation to new technological challenges in Microsoft , they illustrate how antitrust law has grappled with changing economic theories and market realities. The cases show a clear trajectory of increasing influence of the Chicago School’s consumer welfare standard, but also reveal moments of resistance or adaptation to this approach when confronted with novel market dynamics. The Microsoft case, in particular, marks a significant point in this evolution, demonstrating how courts began to recognize the unique challenges posed by the digital economy. By examining these cases, it is possible to trace how the interpretation and application of Section 2 of the Sherman Act has shifted over time, reflecting changing economic theories and market realities. This evolution provides crucial context for understanding current debates about antitrust enforcement, particularly in rapidly evolving digital markets, and sets the stage for the emergence of new approaches like the New Brandeis movement. In considering the Live Nation-Ticketmaster case, this historical context helps to understand the complex landscape of antitrust enforcement and the challenges in addressing anticompetitive behavior today. V. The New Brandeis Movement: Redefining Antitrust for the Modern Era The landscape of antitrust enforcement is undergoing a fundamental shift as new perspectives challenge long-held assumptions about competition law. The limitations of the Chicago School approach, particularly evident in cases like Microsoft and Trinko , have sparked a reimagining of antitrust’s fundamental purposes and tools. As University of Michigan Law Professor Daniel Crane noted recently, “the bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices [from the political left and right] calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values.” At the heart of this antitrust approach evolution lies a debate between the traditional consumer welfare-focused approach and the emerging New Brandeis movement. For decades, the standard approach has emphasized consumer welfare as the primary goal, focusing on economic efficiency and preventing practices that directly harm consumers through higher prices, reduced output, or decreased innovation. This framework has generally led to a more permissive attitude toward mergers and a higher bar for finding antitrust violations. In contrast, the New Brandeis movement, championed by figures like FTC Chairwoman Lina Khan, advocates for a broader understanding of antitrust law’s goals. This perspective, sometimes critically dubbed “hipster antitrust,” contends that enforcement should consider additional factors such as market structure, the distribution of economic power, and the impact on workers, small businesses, and political democracy. The movement’s proponents have been particularly vocal about the need to reassess antitrust approaches in the context of the digital economy, expressing concern over the power wielded by large tech platforms. Lina Khan, a prominent figure in contemporary antitrust discourse, has developed an extensive body of work articulating the principles of the New Brandeis movement. In her article “The New Brandeis Movement: America’s Antimonopoly Debate,” Khan outlines this approach, which draws inspiration from Justice Louis Brandeis’s support of “America’s Madisonian traditions—which aim at a democratic distribution of power and opportunity in the political economy.” The movement represents a significant departure from the Chicago School of antitrust thinking. While the Chicago School emphasized efficiency, prices, and consumer welfare, the New Brandeis approach advocates for a return to a market structure-oriented competition policy. Key tenets include viewing economic power as intrinsically tied to political power, recognizing that some industries naturally tend towards monopoly and require regulation, emphasizing the structures and processes of competition rather than just outcomes, and rejecting the notion of natural market “forces” naturally leading to optimal economic outcomes or consumer welfare, instead understanding markets as fundamentally shaped and structured by law and policy. In her article “The Ideological Roots of America’s Market Power Problem,” Khan further critiques the current antitrust framework, arguing that it has weakened enforcement and allowed high concentration of market power across sectors. She asserts that addressing this issue requires challenging the ideological underpinnings of the current framework, writing, “Identifying paths for greater enforcement within a framework that systematically disfavors enforcement will fall short of addressing the scope of the market power problem we face today.” Ultimately, Khan and other New Brandeis proponents argue for a fundamental rethinking of antitrust’s goals and methods, advocating a return to its original purpose of distributing economic power and preserving democratic values. Building upon her critique of current antitrust frameworks, Khan has written extensively about the unique challenges posed by big tech companies, arguing that traditional enforcement methods are inadequate to address their market power. In her influential article “Amazon’s Antitrust Paradox,” Khan contends that the current antitrust framework is ill-equipped to tackle the anticompetitive effects of digital platforms like Amazon. These platforms, she argues, can leverage their market power and access to data to engage in predatory pricing, disadvantage rivals, and entrench their dominance. Khan writes in the abstract, “This Note argues that the current framework in antitrust—specifically its pegging competition to ‘consumer welfare,’ defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output.” The article explains that despite Amazon’s massive growth, it generates low profits, often pricing products below cost and focusing on expansion rather than short-term gains. This strategy has allowed Amazon to expand far beyond retail, becoming a major player in various sectors including marketing, publishing, entertainment, hardware manufacturing, and cloud computing. Khan argues that this positions Amazon as a critical platform for many other businesses. She further elaborates, “First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible.” Khan argues that in platform markets like Amazon's, predatory pricing can be rational even if product prices appear to be at market rates. This is because the goal is not immediate profit, but rather to rapidly expand market share and establish dominance. The company can sustain short-term losses or razor-thin margins on product sales because the real value lies in becoming the dominant platform, which can lead to long-term profitability through various means such as data collection. Traditional antitrust doctrine, however, often assumes that below-cost pricing is irrational unless the company can quickly recoup its losses through higher prices, which may not apply in these complex, multi-sided markets. This creates a “paradox” where Amazon’s practices may be anticompetitive, yet they escape scrutiny under existing regulations. To address Amazon’s market power, one of Khan’s major suggestions includes restoring traditional antitrust and competition policy principles to its more structure-oriented approach. Khan’s influential academic critiques of current antitrust frameworks, particularly her analysis of Amazon’s market power, laid the groundwork for her approach as FTC chair, where she has sought to translate these ideas into concrete enforcement actions. Since Lina Khan’s appointment as chair of the FTC in 2021 by President Joe Biden, the agency has embarked on a more aggressive approach to antitrust enforcement, challenging some of America’s largest corporations and implementing significant policy shifts. This new direction has yielded mixed results and sparked debates about the future of competition policy in the United States. Khan’s FTC has increased scrutiny of Big Tech, filing an amended antitrust complaint against Facebook (Meta) that challenges its acquisitions of Instagram and WhatsApp, and suing to block Microsoft’s acquisition of Activision Blizzard, citing competition concerns in the video game industry. The agency has also initiated actions against other tech giants like Amazon. Under Khan’s leadership, the FTC has implemented stricter merger enforcement, including a more aggressive approach to reviewing mergers, particularly vertical mergers. The agency withdrew the 2020 Vertical Merger Guidelines, signaling skepticism towards vertical integration, and revised merger guidelines in collaboration with the Department of Justice. There’s also been an increased focus on “killer acquisitions” where large companies buy potential competitors. Khan has emphasized structural remedies over behavioral ones, advocating for more dramatic interventions like breaking up companies in certain cases. Additionally, recognizing the growing importance of data as a competitive asset, the FTC has integrated privacy and data protection concerns into its antitrust approach. For instance, the agency pursued a case against data broker Kochava for selling sensitive geolocation data, highlighting how control over user data can contribute to market power and potentially anticompetitive practices in the digital economy. The implementation of Khan’s approach has seen both successes and setbacks. Partial victories include the FTC v. Facebook (Meta) case, where the court allowed a revised complaint to proceed, and the FTC v. Illumina/Grail case, where the agency successfully challenged a vertical merger, albeit on largely traditional antitrust grounds. However, the FTC faced a setback when its attempt to block Meta’s acquisition of Within Unlimited was rejected. Ongoing challenges persist as courts have shown varying degrees of receptiveness to the expanded view of antitrust harm. As of April 2024, there had been no definitive high-level court ruling fully endorsing or rejecting the New Brandeis approach, with many decisions still relying heavily on the consumer welfare standard. Khan also faces political opposition and challenges to her rule-making initiatives. While Khan has successfully shifted the FTC’s focus towards more aggressive antitrust enforcement and brought increased attention to issues like data privacy and labor market effects, the legal and practical adoption of the New Brandeis philosophy remains a work in progress. The evolving legal landscape sets the stage for analyzing how future cases, such as potential actions against Ticketmaster, might proceed under this new, more expansive view of antitrust enforcement. VI. The Live Nation-Ticketmaster Case: A Critical Analysis of Market Power and Competitive Effects In May 2024, the DOJ, in addition to 30 state and district attorneys general, filed a civil antitrust lawsuit against Live Nation Entertainment Inc. and its wholly owned subsidiary Ticketmaster “for monopolization and other unlawful conduct that thwarts competition in markets across the live entertainment industry.” More specifically, the DOJ accused Live Nation for violating Section 2 of the Sherman Act. In a subsequent press release, the DOJ highlighted several key issues resulting from Live Nation-Ticketmaster’s conduct. The DOJ argued that the company’s practices have led to a lack of innovation in ticketing, higher prices for U.S. consumers compared to other countries, and the use of outdated technology. Further, the DOJ asserted that Live Nation-Ticketmaster “exercises its power over performers, venues, and independent promoters in ways that harm competition” and “imposes barriers to competition that limit the entry and expansion of its rivals.” The lawsuit, which calls for structural relief – primarily the breakup of Live Nation and Ticketmaster – aims to reintroduce competition in the live concert industry, offer fans better options at more affordable prices, and create more opportunities for musicians and other performers at venues. The DOJ claims Live Nation-Ticketmaster uses a “flywheel” business model that self-reinforces its market dominance. This model involves using revenue from fans and sponsorships to secure exclusive deals with artists and venues, creating a cycle that excludes competitors. The complaint outlines several anti-competitive practices, including: partnering with potential rival Oak View Group to avoid competition, threatening retaliation against venues working with competitors, using long-term exclusive contracts with venues, restricting artists’ venue access unless they use Live Nation’s promotion services, and acquiring smaller competitors. The DOJ argues these practices create barriers for rivals to compete fairly. Live Nation Entertainment is the world’s largest live entertainment company, controlling numerous venues and generating over $22 billion in annual revenue globally. The DOJ’s action aims to address these alleged monopolistic practices in the live entertainment industry. Attorney General Merrick B. Garland said, “We contend that Live Nation uses illegal and anti-competitive methods to dominate the live events industry in the U.S., negatively impacting fans, artists, smaller promoters, and venue operators. This dominance leads to higher fees for fans, fewer concert opportunities for artists, reduced chances for smaller promoters, and limited ticketing options for venues. It’s time to break up Live Nation-Ticketmaster.” Beyond traditional market control, Live Nation’s monopolistic position is further entrenched by its significant data advantages, which raise additional competitive and privacy concerns. Through its ticketing operations and venue management, Live Nation amasses vast amounts of consumer data, including purchasing habits, musical preferences, and demographic information. This data not only enhances Live Nation’s ability to target marketing and adjust pricing strategies but also creates a major barrier to entry for potential competitors who lack access to such comprehensive consumer insights. Moreover, the company’s control over this data raises privacy concerns, as consumers may have limited understanding of how their information is being used or shared across Live Nation’s various business segments. These issues mirror broader debates in the digital age about the role of data in maintaining market power, with parallels to concerns raised about tech giants like Google and Facebook. As such, any antitrust action against Live Nation must consider not only traditional measures of market power but also the competitive advantages and potential privacy implications of its data practices. This aspect of the case underscores the need for antitrust enforcement to evolve in response to the increasing importance of data in modern business models. Notably, the DOJ focuses on Live Nation-Ticketmaster’s anticompetitive tactic of threatening and retaliating against venues that work with rivals. In the press release, the DOJ writes, “Live Nation-Ticketmaster’s power in concert promotions means that every live concert venue knows choosing another promoter or ticketer comes with a risk of drawing an adverse reaction from Live Nation-Ticketmaster that would result in losing concerts, revenue, and fans.” This directly violates the terms of the 2010 merger agreement, in which LiveNation was prohibited from retaliating against venues that use competing ticketing services. Considering that the current lawsuit’s main goal is the breakup of Ticketmaster and Live Nation, there exists an undeniable irony that the DOJ is seeking to undo their own actions (approving the merger in 2010). The head of Jones Day’s antitrust practice Craig Waldman said, “The DOJ is breaking out a really big gun here — seeking to blow up a company that was created with its approval. That looms large even though the DOJ has and will continue to try to frame Live Nation’s conduct as going well beyond the scope of the merger.” In hindsight, it is clear that the DOJ’s approval of the 2010 merger was an egregious mistake. Vice president and director of competition policy at the Progressive Policy Institute Diana Moss said, “The Live Nation-Ticketmaster merger was allowed to proceed in 2010, but the decision was an abject failure of antitrust enforcement. Instead of blocking the merger, the DOJ required the company, then with an 80% share of the ticketing market, to comply with ineffective conditions.” The continued anticompetitive practices and market dominance of Live Nation-Ticketmaster after the approved merger demonstrate that behavioral remedies were insufficient to protect competition. As such, structural remedies, specifically breaking up the company, are necessary to restore competition in the live entertainment industry. That extensive pushback and criticism of the merger took place at the time of its approval highlights the limited scope and approach of antitrust enforcement, particularly when it comes to mergers. The Live Nation-Ticketmaster case will proceed in New York’s Southern District, known for its slow litigation process, potentially delaying a trial until late 2026. In its defense, Live Nation argues that it does not hold a monopoly, claiming that its profit margins are low and that ticket prices are influenced more by factors like artist popularity and secondary ticketing markets than by its own practices. Live Nation contends that the efficiencies achieved by merging with Ticketmaster benefit the industry by offering better services and prices compared to separating the companies. The company emphasizes that its vertical integration—combining promotion and ticketing services—creates a more efficient and artist-friendly business model. Live Nation also asserts that the secondary ticketing market, rather than its own practices, is primarily responsible for high ticket prices. The case will scrutinize whether the efficiencies claimed by Live Nation justify its market control or if the harm to competition outweighs these benefits. The DOJ’s push for a breakup, and refusal to settle for anything less than a breakup, reflects the relative success of the New Brandeis movement, particularly when considering the FTC’s revised merger guidelines in collaboration with the DOJ. When analyzed through the lens of the Grinnell test, Live Nation’s conduct clearly meets both prongs for monopolization under Section 2 of the Sherman Act. First, Live Nation undoubtedly possesses monopoly power in the relevant markets of concert promotion and ticketing. With an estimated 80% market share in ticketing for major concert venues and its dominant position in concert promotion, Live Nation far exceeds the typical thresholds courts have used to identify monopoly power. The company’s ability to impose high fees, dictate terms to artists and venues, and persistently maintain its market position despite widespread consumer dissatisfaction further evidences its monopoly power. Second, Live Nation has willfully acquired and maintained this power through exclusionary practices, not merely through superior products or business acumen. The DOJ’s complaint outlines numerous anti competitive tactics, including threatening retaliation against venues that use competing services, leveraging its control over artists to pressure venues, and using long-term exclusive contracts to lock out competitors. These practices go well beyond legitimate competition based on merit. Moreover, Live Nation strategic acquisitions of potential competitors and its alleged collusion with Oak View Group to avoid competition further demonstrate its willful maintenance of monopoly power. The company’s “flywheel” business model, while potentially efficient, serves to entrench its dominance across multiple markets in ways that foreclose competition. Thus, Live Nation’s conduct satisfies both prongs of the Grinnell test, strongly supporting the DOJ’s case for illegal monopolization. It’s important to note, however, that while the Grinnell test remains a fundamental framework cited in monopolization cases, its application in modern antitrust law has evolved and become more nuanced. In recent decades, courts have increasingly used the Grinnell test as a starting point rather than a definitive standard. The test is now supplemented with more sophisticated economic analyses. Therefore, while the Grinnell test will likely be referenced in the Live Nation case, the court's analysis is expected to be more comprehensive, potentially incorporating more recent precedents and economic theories to fully capture the nuances of Live Nation’s market position and conduct. The Live Nation-Ticketmaster case illuminates several fundamental limitations in current antitrust doctrine. First, the case demonstrates how the Chicago School’s permissive approach to vertical mergers, embedded in Clayton Act enforcement, systematically underestimates the long-term competitive threats posed by vertical integration in platform markets. Second, the case exposes the inherent weakness of behavioral remedies in addressing vertical merger concerns. The failure of the 2010 settlement’s behavioral conditions—despite their specificity and ongoing oversight—suggests that such remedies are fundamentally inadequate for controlling the conduct of vertically integrated firms with substantial market power. Third, and perhaps most significantly, the case reveals the challenging burden facing regulators under Section 2 of the Sherman Act once a vertically integrated entity has established market dominance. Even with clear evidence of exclusionary conduct, proving harm under current Section 2 doctrine requires navigating complex questions about market definition and competitive effects that may not fully capture the subtle ways in which vertical integration can entrench market power. The Consumer Welfare Standard, which has dominated antitrust analysis since the 1980s, is inadequate in fully capturing the anticompetitive harm caused by Live Nation’s practices. While this standard primarily focuses on consumer prices and output, it fails to account for the multifaceted nature of competition in the live entertainment industry. Certainly, the high ticket prices and fees imposed by Live Nation are relevant concerns under this framework. However, this narrow focus obscures the broader and more insidious effects of Live Nation’s market dominance. For instance, the standard doesn’t adequately address the reduced choices faced by venues, who often feel compelled to contract with Live Nation for fear of losing access to popular acts. Similarly, it fails to capture the constraints placed on artists, who may find their touring options limited by Live Nation’s control over major venues and promotion services. The standard also struggles to account for the barriers to entry the industry created by Live Nation’s vertically integrated structure and exclusive contracts, which stifle potential competitors and innovative business models in the ticketing and promotion markets. Moreover, the Consumer Welfare Standard’s short-term focus on prices neglects long-term impacts on innovation, diversity, and the overall health of the live entertainment ecosystem. It fails to account for how one company’s dominance can lead to less diverse music options and harm smaller venues and independent promoters who are crucial for supporting new artists. By focusing mainly on short-term price effects, the standard overlooks the broader, long-term damage to competition in the industry. This limitation of the Consumer Welfare Standard in the Live Nation case underscores the need for a more comprehensive approach to antitrust analysis, one that aligns more closely with the broader concerns of the New Brandeis movement. Building on the limitations of the Consumer Welfare Standard and the evolving application of the Grinnell test, it becomes clear that a more comprehensive approach to antitrust enforcement is necessary in the Live Nation case. The failure of the 2010 behavioral remedies further underscores this need. Despite prohibitions on retaliatory practices and requirements to license ticketing software to competitors, Live Nation has continued to dominate the market and engage in exclusionary conduct. This persistence of anticompetitive behavior, even under regulatory oversight, demonstrates that more robust, structural solutions are required. In retrospect, it is evident that the DOJ should have never approved the merger in the first place, as the vertical integration of Live Nation and Ticketmaster created a entity with unprecedented market power and clear incentives for anticompetitive behavior. In light of these considerations, the DOJ should argue for a full structural separation of Live Nation and Ticketmaster as the primary remedy. This breakup would reintroduce genuine competition into both the concert promotion and ticketing markets, addressing the root causes of Live Nation’s market power more effectively than behavioral conditions. To ensure a competitive landscape post-separation, the court should also consider supplementary measures. These could include prohibiting exclusive deals with venues and imposing limits on the percentage of a market’s concert promotion that Live Nation can control. By advocating for these comprehensive structural changes, the DOJ can align its approach with the more aggressive, market structure-focused enforcement advocated by the New Brandeis movement. This approach not only addresses the immediate concerns in the live entertainment industry but also sets a potential precedent for future antitrust cases in similarly complex, vertically integrated industries. It recognizes that in today’s interconnected markets, protecting competition requires looking beyond short-term price effects to consider the broader ecosystem of industry participants, from artists and venues to emerging competitors and consumers. VII. Conclusion The Live Nation-Ticketmaster case serves as a stark illustration of the inadequacies of traditional antitrust enforcement in addressing the complexities of modern markets. The DOJ’s original approval of the 2010 merger, despite widespread criticism and concerns, highlights the limitations of the consumer welfare-focused approach and the ineffectiveness of behavioral remedies in curbing anti competitive practices. The subsequent dominance of Live Nation in the live entertainment industry, characterized by its “flywheel” business model and alleged exclusionary practices, demonstrates the need for a more comprehensive and aggressive approach to antitrust enforcement. This case represents a critical juncture in the evolution of antitrust law, potentially marking a shift towards the more expansive view advocated by the New Brandeis movement. The DOJ’s pursuit of structural remedies, specifically the breakup of Live Nation and Ticketmaster, signals a recognition that protecting competition in today’s interconnected markets requires looking beyond short-term price effects to consider the broader ecosystem of industry participants. 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The Burden of Innocence: Arendt’s Understanding of Totalitarianism through its Victims Elena Muglia Author Emerson Rhodes Meruka Vyas Editors Hannah Arendt set out to describe an ideology and government that burst past understandings of politics, morality, and the law asunder. In Origins of Totalitarianism , Arendt argues that totalitarianism could not fit into previous political typologies. Instead, it navigates between definitions of political regimes like tyranny and authoritarianism, as well as distinctions historically made between lawlessness and lawfulness, arbitrary and legitimate power. Even then, Arendt holds on to the idea that totalitarianism can be described and analyzed despite escaping traditional understanding as a political ideology and system. In the preface of the first edition, Arendt expresses this hope, writing that Origins was: “Written out of the conviction that it should be possible to discover the hidden mechanics by which all traditional elements of our political and spiritual world were dissolved into a conglomeration where everything seems to have lost specific value and has become unrecognizable for human comprehension, unusable for human purpose.” One of the traditional elements of our “political and spiritual” world that she inquires about are questions of innocence, guilt, and responsibility. How can these concepts, which have both moral and legal implications, be applied and understood in the case of Nazi Germany, a regime void of morality and legality? Many political theorists have explored Arendt’s understanding of guilt in her report Eichmann in Jerusalem . In the report, Arendt utilizes Adolf Eichmann’s case—a Nazi Party official who helped carry out the Final Solution—to provide a concrete example of someone who is guilty but does not fit traditional understandings of what is required to be criminally guilty. Alan Norrie points out that Arendt exposes the tension between Eichmann’s lack of criminal intent, mens rea , and his criminal and evil actions (Norrie 2008. 202). The totality of totalitarianism complicates his criminal guilt, as Nazi Germany rendered every member of society complicit in its crimes. To unpack this complex nexus of guilt and responsibility, Iris Young looks at two of Arendt’s essays; “Organized Guilt and Universal Responsibility” and “Collective Responsibility” (Young 2011, 90). Young outlines how Arendt understands guilt as centered on the self, while responsibility implies a relationship with the world and membership in a political community (Young 2011, 78). Guilt arises from an objective consequence of somebody’s actions (Young 2011, 79) and is not a product of someone’s subjective state. With this understanding, everybody in Nazi Germany was responsible (irrespective of whether they took up political responsibility), but not everybody was guilty. Those who acted publicly against the Nazi Regime, like the Scholl siblings, took up political responsibility in a positive sense (Young 2011, 91). Richard Bernstein, who also discusses Eichmann, shares this understanding with Young—Eichmann is criminally guilty, but bystanders are not. Bernstein, however, elucidates that the bystanders’ responsibility is imperative to understand because their complicity was an “essential condition for carrying out the Final Solution” (Bernstein 1999, 165). By focusing on the areas of guilt and responsibility and primarily looking at Eichmann, however, these scholars leave a theoretical gap in understanding the relationship between the victims—the stateless and Jewish people for Nazi Germany—and totalitarian ideology. These groups lack political responsibility within the totalitarian system because their innocence implies a separation from the world and a political community. In her essay “Collective Responsibility,” Arendt notes that the twentieth century has created a category of men who “cannot be held politically responsible for anything” and are “absolutely innocent.” The innocence of these victims and their apoliticality strikes at the heart of why Arendt postulates that totalitarian ideology and terror constitute a novel form of government—“[it] differs essentially from other forms of political oppression known to us such as despotism, tyranny and dictatorship.” Totalitarianism targets victims en masse , but their status as victims is not based on any action they take against the regime. While Norrie, Young, and Bernstein all address that Arendt thinks that any “traditional” conception of the relationship between law and justice cannot be applied to totalitarianism directly, by focusing primarily on Eichmann, they are missing and understanding of a group of people that allowed totalitarianism to explode these notions. By tracking and parsing through Arendt’s understanding of the innocents and innocence in Origins of Totalitarianism and placing it in conversation with her understanding of action in The Human Condition, I elaborate on the unique and lack thereof, political relationship between totalitarian ideology and the innocents. I argue that the condition of innocence of the victims represents the essence of totalitarianism’s unique form of oppression and negation of the human condition. The positioning of the innocents in a totalitarian society acts as a lens for how totalitarianism aims to reshape traditional notions of political, moral, and legal personhood. I demonstrate this by first outlining what created fertile ground in the 20th century for the condition of rightlessness of the innocents. Second, I highlight how the targeting of innocents in concentration camps lies at the heart of totalitarianism’s destruction of the juridical person—someone who is judged based on their actions. Third, I argue that by bending any notions of justice, totalitarianism destroys the moral person, a destruction that is best expressed in the innocents’ lack of internal freedom. Finally, I argue that all these components entail severing the victims from a world where they can appear and be recognized as humans. Overall, I contend that while many of the techniques unleashed on the innocents apply, to an extent, to everyone under totalitarianism, including people like Eichmann, the innocents represent the full realization of totalitarianism’ attempt to alter the essence of a political and acting person. To understand how totalitarian regimes created a mass of ‘superfluous’ people who existed outside the political realm, it is first necessary to highlight what conditions Arendt thinks sowed fertile ground for totalitarian domination and terror in the first place. A crucial condition is rooted in the failures of the nation-state in dealing with the new category of stateless people in the interwar period in Europe. Following WWI, multiethnic empires, like the Austro-Hungarian and Ottoman empires, dissolved, which led Europe to resort to the familiar nation-state principle—presuming that each nationality should establish its state. As Ayten Gundogdu writes, “the unquestioning application of this principle turned all those who were ‘ejected from the old trinity of state-people-territory’ into exceptions to the norm” (Gundogdu 2014, 31). These exceptions to the norm, as were Jewish people, could not be repatriated anywhere because they did not have a nation. Instead of integrating these minorities and making them fully-fledged political members, policies like Minority Treaties codified minorities as exceptions to the law. The massive scale of refugees that existed outside a political community left a set of people without any protections apart from the ones that the state gave out of their own prerogative and charitable actions. This stateless crisis crystallized, for Arendt, the aporia of human rights—even though human rights guarantee universal rights, irrespective of any social and political category, they are enforced based on political membership. Human rights end up being the rights of citizens, leading the stateless to a condition of “absolute rightlessness.” This condition of rightlessness does not entail the loss of singular rights—just like the law temporarily deprives a criminal of the right to freedom—but a deprivation of what Arendt calls the right to have rights. Defined by Arendt as a right to live “in a framework where one is judged by one’s actions and opinions.” Instead of being judged based on actions or opinions, the stateless are judged based on belonging to a group outside the nation. This innocence, an inability to be judged based on one’s deeds and words, is the defining mark of the statelessness’ loss of a “political status” (Arendt 1951, 386), which primes these groups of people for the particular form of oppression that totalitarianism entails. While the stateless and their condition of rightlessness was constructed even before Nazi Germany, the existence and the continuous creation of a mass of innocents lies at the core of the raison d’étre of totalitarian politics. According to Arendt, totalitarianism operates based on a law of Nature and History, which has “mankind” as an end product, an “‘Aryan’ world empire” for Hitler. Mankind becomes the “embodiment” of law and justice. Jewish people, under Nazi Germany, are portrayed as the “objective enemy” halting nature’s progression, whereby every stage of terror is seen as a further development that is closer to achieving the development of the ultimate human. This continuous need to follow a Darwinian law of nature leads Arendt to define one of totalitarianism’ defining features as the law of movement: the only way that totalitarian regimes can justify their existence, expansion, and domination, and it relies almost entirely on the group of innocents. The innocents are crucial components of the concentration camps because they are placed there alongside criminals who have committed an action. If they only targeted “criminals” or those that committed particular actions, the Nazi party would have scant logic to fulfill its law of movement. The “innocents” are “both qualitatively and quantitatively the most essential category of the camp population.” in the sense that they exist in an “enormous” capacity and will always be present in society. Totalitarianism relies on innocents because their existence removes any “calculable punishment for definite offenses.” Totalitarian politics aim, eventually, to turn everyone into an innocent mass that could be targeted, not because of their actions, but their existence. Even criminals were often sent to concentration camps only after they had completed their prison sentences, meaning they were going there not because of their criminal activity but rather arbitrarily, sacrificing a mass in favor of the laws of history and nature. The condition of rightlessness combined with total domination, exerted through the concentration camps, obliterates the juridical person for all the victims of totalitarianism. The juridical person is the foundation of modern understandings of law, constituting a person who bears rights and can exercise rights and who, in derogation of the law, faces proportional and predictable consequences. By destroying the juridical person and turning its victims into a mass of people who exist outside any legal framework and logic, totalitarianism operates beyond any previously conceived notions of justice. As Arendt explains: “The one thing that cannot be reproduced [in a totalitarian regime] is what made the traditional conceptions of Hell tolerable to man: the Last Judgment, the idea of an absolute standard of justice combined with the infinite possibility of grace. For in the human estimation, there is no crime and no sin commensurable with the everlasting torments of Hell. Hence the discomfiture of common sense, which asks: What crime must these people have committed in order to suffer so inhumanly? Hence also the absolute innocence of the victims: no man ever deserved this. Hence finally the grotesque haphazardness with which concentration camp victims were chosen in the perfected terror state: such punishment can, with equal justice and injustice, be inflicted on anyone .” By “traditional conceptions of Hell” tolerable to man, Arendt means a Hell where every individual will be judged based on their actions and nothing else on the day of the Last Judgment. Totalitarianism shatters this idea and any existence of an “absolute standard of justice” through the concentration camps, which creates Hell on earth but without any rightful last judgment. Even more importantly, because of these innocents and the arbitrariness and “haphazardness” of the way they are chosen, Arendt explains that state punishment can be “inflicted on anyone.” A tyranny targets the opponents of a regime or anyone who causes disorder, but totalitarianism cannot be understood through such a utilitarian lens. As Arendt points out in various places in Origins , without understanding totalitarianism’ “anti-utilitarian behavior.” it is difficult and impossible to understand its use in targeting people who commit no specific action against the regime. Concentration camps and terror materialize the law of movement like positive law materializes notions of justice in lawful governments. The guilty are innocents who stand in the way of movement. Totalitarianism does not only operate outside any traditional forms of legality and juridical personhood but also transcends any understanding of morality—the moral person is destroyed just as the juridical one is; and this is, once again, fully expressed through the treatment of innocents who become the ideal subject of totalitarianism. The ideal subject of totalitarianism lacks both internal and external freedom—which is precisely what is imposed on the victims. A lack of internal freedom implies an inability to distinguish right and wrong. As Arendt explains, “totalitarian terror,” in the concentration camps, achieves triumph when it cuts the moral person from “the individualist escape and in making the decisions of conscience questionable and equivocal.” The Nazi Regime achieved this by asking the innocent to make impossible decisions that involved balancing their own life and the ones of their families. This often involved a blurring of “the murderer and his victim.” by involving even the concentration camp inmates in the operations of the camp. Concerning this, Robert Braun talks about Primo Levi’s discussion of the complicated victim—explaining that those who survived the concentration camps are always seen as suspect because of these blurred lines (Braun 1994, 186). Arendt has a parallel opinion to Levi that focuses more on those victim’s subjective state, explaining that when they return to the “word of the living,” they are “assailed by doubts” regarding their truthfulness. The innocents represent the perfect totalitarian subject as their doubts represent an inability to distinguish between truth and falsehood, which Arendt describes as the “standards of thought.” What is most striking about the destabilization of conscience is that it results in an inability to a freezing effect and an inability to act. As Arendt explains, “Through the creation of conditions under which conscience ceases to be adequate and to do good becomes utterly impossible, the consciously organized complicity of all men in the crimes of totalitarian regimes is extended to the victims and thus made really total.” Regardless of what “good” entails, doing it entails committing an action that is for others. Doing good can be understood as analogous to how Young interprets Arendt’s understanding of political responsibility… further explaining how the victims are left to a condition of non-responsibility through their inability to both distinguish what is right and wrong, and act on it. The erasure of “acting” in totalitarianism gains new meaning, or rather a more comprehensive explanation, when looking at Arendt’s discussion of acting in The Human Condition. Arendt’s work in The Human Condition illuminates the full extent of why acting becomes impossible under totalitarianism, especially for its victims. As Nica Siegel explains, an essential aspect of her understanding of action in The Human Condition is the spatialized logic that grounds action in a space where one can “reveal their unique personal identities and make their appearance in the world.” Only in this way can an action take place as it has a “who”—a unique author—at its root, and thus has the potential to create new beginnings. With this understanding, totalitarianism is the antithesis of action for everyone, to an extent, but completely for the innocent. Totalitarianism removes their space to act internally—through the destruction of conscience explained in the previous section—and externally—removing any place to appear publicly. The innocent are removed from the rest simply by being in the concentration camps, isolated from everyone else but also from one another. This means that totalitarianism, in practice, removes any source and space for spontaneity. Arendt defines spontaneity in Origins almost identically to how she defines action in The Human Condition , saying that spontaneity is “man’s power to begin something new out of his resources, something that cannot be explained on the basis of reactions to environment or events.” This condition of the innocent also illuminates why creating new and making a political statement is impossible under totalitarianism. As Arendt explains, “no activity can become excellent if the world does not provide a proper space for its exercise.” As with many other tactics in totalitarianism, this lack of excellence and new beginnings is rooted in the fate of the innocents. Nobody’s actions can “become excellent” if they face the same consequences of the concentration camp as the mass of those who commit no action. This is why under totalitarianism, “martyrdom” becomes “impossible.” Just as totalitarianism assimilates criminals with innocents in their punishment, political actors are also assimilated to this category, as they are “deprived of the protective distinction that comes of their having done something,” just as the innocents are. What totalitarianism does to its victims is, therefore, a symptom of its wider perversion of human individuality and action in general. Even perpetrators like Eichmann lose their sense of individuality—A.J. Vetlesen has described the phenomenon as a double dehumanization between the victims and the perpetrator Every bureaucrat in Nazi Germany was replaceable and totalitarianism made them feel, paradoxically, “subjectively innocent,” in the sense that they do not feel responsible for their actions “because they do not really murder but execute a death sentence pronounced by some higher tribunal.” Jalusic argues that both aspects of humanization have in common, the “loss of the human condition.”, but what Jalusic misses is that Vetlesen, by arguing that it is the persecutors that dehumanize themselves to avoid personal responsibility and alienate themselves from their actions—thus going against the cog in the machine theory. The perpetrators retain a level of agency that is ultimately denied to the victims. The victims do not alienate themselves from their actions, as they cannot act in the first place. When Nazi officials send victims to the concentration camp, they lose any ability to appear and thus face a loss of the human condition, as Arendt describes in The Human Condition, “A life without speech and without action, on the other hand-and this is the only way of life that in earnest has renounced all appearance and all vanity in the biblical sense of the word-is, literally dead to the world; it has ceased to be a human life because it is no longer lived among men” The emphasis she places on action as being an essential part of living “among men” explains why, according to her, totalitarianism, unlike other forms of oppressive governments, transforms “human nature itself.” While she uses the term “human nature,” she makes a strict distinction between human nature and condition in The Human Condition , arguing that it is impossible for us to understand human nature without resorting to God or a deity. Even in Origins , when talking about human nature, she criticizes those, like the positivists, who see it as something fixed and not constantly conditioned by ourselves. In light of her understanding of the human condition, I argue that Arendt means that totalitarianism undermines an essential part of the human condition, not human nature. Arendt views the human condition, as opposed to human nature, as being rooted in plurality. By plurality, she means that each individual is uniquely different but also shares a means of communication with every other individual, and thus, the ability of each individual to make themselves known and engage with one another. With this in mind, “human plurality is the basic condition for both action and speech,” as each individual can make a statement and be understood by others. The treatment of victims and their innocence as their defining factor highlights that fellow humans can distort and condition crucial aspects of our human condition in favor of laws that pretend that humans can instill justice and nature on earth. To a degree, totalitarianism subjects everyone to the conditions of “innocence” that victims face. What distinguishes the victims from other agents under totalitarianism is that they demonstrate the ability of totalitarian ideology to instill a complete condition of innocence by playing a person entirely outside any political and legal realm and, by extension, outside of mankind. Innocence under totalitarianism is not a negative condition—in the sense of not having done anything, not taking action—but it is primarily a lack of positive freedom—the ability to do something and act. Arendt’s understanding of innocence elaborates on the unique condition of superfluousness under totalitarianism. This ‘superfluousness’ is justified through a legal and political doctrine that explodes past legal and normative frameworks by being based on movement instead of stability. The law of nature is in a constant process of Darwinian development, with the superfluous innocents as the sine qua non to keep going. A lot of what happens to the innocents, as their obliteration of a space to act, does happen to everyone under totalitarianism; however, the innocents bear the full expression of totalitarianism and fight past notions of moral, political, and legal personhood. The innocents are not only cut off from this personhood but also from what Arendt thinks it means to be human, as they represent an inability to do what human beings do, which is to create beginnings through spontaneous action. The unique condition of innocence that the victims of totalitarianism face exposes totalitarianism’s own legal and political theory. The Law of Nature that Nazi Germany espouses here cannot exist without the realization of a group of innocents who prove the nihilistic idea that humans can be sacrificed for perfected mankind. As Arendt explains, the concentration camps are where the changes in “human nature are tested.” We can only understand how totalitarianism could occur by looking at this unique political erasure. The terror and fate of the innocents act as proof for everyone in the totalitarian regime that they could be next. The status of the victims also sheds lights on the inexplicable deeds that Eichmann committed, as Arendt writes that one of the few, if not only one, discernible aspects of totalitarianism is that “radical evil has emerged in connection with a system in which all men have become equally superfluous.” Totalitarianism proves that it is fellow humans who are dehumanized, albeit to a different degree, who completely sever an individual’s ties from political and legal structures meant to protect them. This conclusion and elaboration of the peculiar form of oppression and domination of totalitarianism has pressing practical and theoretical implications for modern-day politics. As Arendt explains, totalitarianism is born from modern conditions, and so looking at how modern polities can and do create superfluousness can be a thermometer for descent into totalitarianism. 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