Alexa Stanger Happening on “Polished Society”: Towards a Theory of Progress and Corruption in the writings of Adam Ferguson and David Hume Alexa Stanger As two of the most important philosophical thinkers of the Scottish Enlightenment, David Hume and Adam Ferguson wrote formative texts in the philosophical discourse of modernity. Witnessing the emergence of commercial society and constitutional governments, both thinkers saw the classical republican model of politics, with its teleological bent and emphasis on cultivating the proper function of humans, as obsolete in the context of the commercial world. Neither civic virtue nor a pursuit of the proper function of humanity could explain the emergence of modern society—nor could they explain how commercial society might progress (1). In a sharp contrast to ancient philosophy, Hume and Ferguson realized the importance of locating their philosophy within a historical context. Even if the chief role of history is to serve as a record of the virtues or practices that have historically proved to be beneficial, Hume and Ferguson’s application of history provides a new prism through which people’s judgement might be filtered, introducing the space for a theory of progress. Indeed, the notion of humanity’s ability to progress, if not a belief in the inevitability of progress itself, is integral to both writers and to Enlightenment thought: “polished society,” where the full flourishing of the arts and sciences might be realised, was the logical progression of human society from its “rude” origins (2). The newfound importance ascribed to wealth, manners, and freedom meant that the ancient formulations of moral and civic virtue, such as those found in Plato’s writings, had to be re-evaluated in the context of the modern state. Nevertheless, Ferguson retains some notion of Classical teleology in his republicanism, a point where he diverges from Hume, in what Fania Oz-Salzberger describes as a “theory of commercial modernity with classical-republican linch- pins” (3). Where Hume has endless praise for the merits of modern society, Ferguson holds significant reservations. Hume’s vision of progress contains both a moral and a material character whereas Ferguson fears a deep tension between these two forces. Often neglected in Hume’s shadow, Ferguson is cast as the pessimistic commentator on bourgeois society, “a bemused, perplexed and rather worried observer of the kind of Civil Society which he sees emerging” (4). He sees the dark underside of commercial society that, whilst demonstrating how society has progressed from its primitive predecessors, might also plant the seeds of its corruption. In reading these two philosophers alongside one another, we might come to a better understanding of how the same philosophical current creates room for a theory of progress, a shining optimism in the path that industrialisation laid before human society, whilst retaining a sober skepticism of what might lie beneath the polish. An inquiry into Hume’s concept of human nature provides the basis for under- standing how polished society might arise and how this society might subsequently progress. His methodology thus deftly engages a set of timeless observations, namely those pertaining to human nature, within the context of humankind’s historical development. Today, “polished society” might be understood as a narrow, elitist notion of the values society should nurture, though in the Scottish Enlightenment this term referred to qualities of “polish” as an indispensable quality of civilized life and the foundation for progress in all aspects of society, not limited to politics but extending into art, religion, even the built environment. Hume famously declared that “reason is and ought only to be the slave of the passions,” arguing that in spurring an agent to act, the feelings the action provokes surpass any rational analysis of outcomes (5). However, Hume arguably overstates his point: reason is not entirely removed from the equation when people assess whether or not to act. In fact, there is a significant level of rational exercise at work in the self-reflective process where people evaluate the sentiments attached to a certain action—an exercise introduced in Hume’s philosophy by his concept of justice. It is “the sense of virtue [...] deriv’d from reason, ” that facilitates a self-reflective process that corrects people’s natural near-sightedness (where the “strongest attention is confin’d to [oneself]”) in the interests of longer-term societal preservation (6). Hume thus strikes a necessary balance between rationality and sentiment in informing how a people have tempered their passion-directed actions as a result of living in society (7). More pertinent to an understanding of progress in Hume’s philosophy is his notion of humankind as fundamentally self-interested yet partially benevolent. Hume dismisses the Hobbesian state of nature as pure fiction. As Hume conceives the individual as being primarily directed by sentiment, the notion of human character as fundamentally sympathetic arises. The Humean individual is depicted as standing at the hub of a network of social relationships, and it is through assessment of how one’s action might not only be received by the individual themselves, but also by those around them that leads to moral sympathy in Hume’s formulation. This sympathetic construction of human nature gives rise to another concept in Hume’s philosophy: the “partial benevolence” of humanity (8). Hume sees self-interest, albeit attuned to how this self-interest might complement the broader interests of society, as the chief director of human action: “this avidity alone, of acquiring goods and possessions for ourselves and our nearest friends, is insatiable, perpetual, universal, and directly destructive of society” (9). Although he indicates here how this self-interest might initially appear destructive and all-consuming, the consideration of the interests of “nearest friends” expands self-interest beyond the purely selfish. Unselfish self-interest is possible; though self-interest begins with an individual’s attention on their personal needs, awareness of the interests of close friends tempers this selfishness. The balancing of myopic focus on the self with the interests of an individual’s associates foreshadows the idea of partial benevolence, where a concern for the interests of one’s associates pulls at humankind’s naturally sympathetic imagination and shapes how closely one chooses to follow their self-interest. Partial benevolence becomes a check for this insatiability, channelling it into a useful form that motivates individuals to engage in an active life in order to satisfy their appetites. As people find a middle ground between self-interest and its blind pursuit, they make space for progress in the realm of polished society, be that commerce or the arts, whilst also solidifying the “bands of affection” that are necessary to the preservation of society. Consequently, these self-interested bands of affection might actually serve the public interest in the long-term through ensuring that an individual remains in society but also set the wheels of progress in motion. Similar to Hume, Ferguson also recognizes self-interest as a fundamental characteristic of human nature and emphasises the associational aspect of polished society, whereby humans inevitably interact and largely cooperate with one an- other in order to live. It is the “motive of interest” that “animate[s] the pursuits, or direct[s] the measures, of ordinary men” (10). Indeed, it is this associational tendency of humanity that Ferguson fears commercial society, overrun with the vicious effects of capitalism, will ultimately undermine. However, this notion of association—that a human is influenced by the relations he draws between himself and their fellow person—is extended to include not only interpersonal relations but also intergenerational and even intergovernmental ones: “man proceed[s] from one form of government to another, by easy transitions [...] the seeds of every form are lodged in human nature” (11). It is perfectly natural that one form of human society should build upon its predecessors’ society, conveying a linear progression of history in Ferguson’s political thought. The tendency of governments and human associations to build upon one another is a product of what Ferguson characterises as the tendency of “nations [to] stumble upon establishments” (12). He claims that it is not in human nature to “foresee” but rather to “know by experience” precisely what form of government might arise (13). Ferguson argues that humans learn from history what actions are most conducive to a stable society, enabling them to dispense with the errors of the past and thus embark on the gradual advancement of society: one generation builds on another. In this way, the inevitability of progress, even if this does not bar the possibility of regress, is ingrained in Ferguson’s philosophy through his view of history as a linear process. In fact, one might argue that what Ferguson sees as the failure of primitive societies is a prerequisite for his philosophy on the emergence of polished society. In his Essay on the History of Civil Society, Ferguson writes “Nations, which in later periods of their history became eminent for civil wisdom and justice, had, perhaps, in a former age, paroxysms of lawless disorder [...] The very policy by which they arrived at their degree of national felicity, was devised as a remedy for outrageous abuse” (14). Ferguson shows that in such national development, there was an intentional attempt on the part of their lawmakers to restructure their society in view of redressing past failings and avoiding their repetition. It is through understanding past mistakes, inquiring into why nations have failed, that humans might work toward progress. It is worth not- ing that Ferguson does not see history as a grand narrative documenting humans as passive, but sees history as directly driven by human action: “the attainment of one end is but the beginning of a new pursuit” (15). History is thus in part driven by humans’ insatiable self-interest, which requires them to be endlessly engaged in the workings of society, giving them an investment in their society that will be conducive to its progression. The social nature of human character, the fact that one is born into society and actively creates and participates in society’s custom, helps us understand the role of custom in Hume’s philosophy, which can then be applied to a theory of progress. Hume makes clear the importance of custom in explaining why certain values have been retained in human association and how these values shape our moral judgement: “each century has its peculiar mode in conducting business; and men, guided more by custom than by reason, follow, without inquiry, the manners which are prevalent in their own time” (16). The crucial role of custom in shaping human action becomes intuitive when connected to Hume’s concept of the natural sociability of humankind and his construction of human society. Furthermore, Hume’s understanding of custom helps resolve a potential logical break in his philosophy regarding the space for progress. If Hume’s philosophy emphasises the importance of sentiment, with all its changeability in directing human action and morality, one might question how progression can arise, when this notion implies a degree of consistency and gradual change. It is the role of sentiment in conjunction with history that turns these inconsistent actions of human nature into a pattern of action that we name custom. This custom, in turn, directs future human action while remaining a product of what was originally deemed moral by human sentiment: “habit soon consolidates what other principles of human nature had imperfectly founded,” and in this way history acts as a stabilising force (17). Although both Hume and Ferguson historicize human nature, they do not go so far as Hegel’s dialectic, where human nature itself is altered by human action in the unfolding of history and the synthesis of conflicting human interactions (18). In fact, Hume holds a rather conservative view of the influence of history on human action, stating that history’s “chief use is only to discover the constant and universal principles of human nature” (19). This statement is potentially misleading if the “constancy” of human nature is misinterpreted as the predictability of human action: history does not serve only to erode difference and show the universal properties of human nature but also shows how these properties arose by accident but were retained as a result of their demonstrated usefulness in practice. In this conception of a human nature informed by historical events, Alix Cohen observes a malleable element of human judgement that overlays the selfish quality of Hume’s formulation of human nature, which is “influenced by society and political structures” (20). In fact, Hume emphasises the inconstancy of human nature: “‘tis difficult for the mind, when actuated by any passion, to confine itself to that passion alone, without any change or variation. Human nature is too inconstant to admit of any such regularity. Changeableness is essential to it” (21). It is precisely this inconstancy in human nature, unable to predict the workings of the imagination, that allows for history to enter onto the scene. By replacing reason with sentiment as the primary motivator for human action, Hume renders humankind susceptible to the influence of convention in directing one’s actions, because people realise that their actions have consequences and can predict how their actions might be received. This is not to say that a person becomes subject to, nor even the “slave of” passions, but rather that in critical self-reflection of how to direct their actions, the person is profoundly influenced by the passions that might arise from society’s regard for their actions (22). This is the necessary effect of Hume’s formulation of society as a network of relations and exposes a dynamism in human nature conducive to progress. Having demonstrated how both Ferguson and Hume conceive of humans as naturally social, influenced in their actions by custom and the “lessons of history,” one might now consider where a theory of progress fits into their philosophies. It has been established that both thinkers regarded modern, commercial society as the most artistically and technologically advanced form of society, where the arts and sciences flourish as never before (23). Furthermore, in preserving the beneficial consequences of human action as custom, the role of history makes room for the idea that commercial society tends toward building on such historical principles for overall betterment. Hume’s notion of justice as the safeguarding of property rights connects political stability with commercial activity: commercial activity, along with humankind’s naturally self-interested disposition, compels people to establish as well as to adhere to the rules of justice so that they might enjoy the fruits of a collective labour. In this way, the progress of political society goes hand in hand with the progress of economic thought: “polished society,” therefore, manifests both civic and commercial advancement. Furthermore, Hume posits leading an active life as almost part of human nature, suggesting that economic progress is the logical corollary of his formulation of humanity; he claims that it is not only the love of the fruit of labour but also the occupation itself that produces pleasure on pursuing activity as opposed to idleness (24). It is this dual satisfaction that such labour produces, including a sentimental element elevated above a purely material interest, that demonstrates how human nature might guide societal progress. Work invigorates the mind such that humankind has a selfish interest in seeing industry and the arts flourish; a person’s natural predisposition towards activity and commitment to their work thereby necessarily entails an aggregate progress. In considering the general progress of society, the notion of moral progress (or at least the evolution of tastes) also plays a constitutive role. In commercial society, Hume argues that “the possessor has also a secondary satisfaction in riches arising from the love and esteem he acquires by them” (25). The love of this secondary satisfaction gives rise to the potentially destructive human greed in commercial society that Ferguson so feared, but it nonetheless provides an impetus for humans to engage in commercial activity, such as trade and manufacturing. These secondary satisfactions deriving from said “love and esteem” (sentiments connected to a judgement of character and reputation) demonstrate how morality might also play a role in an assessment of economic progress. This sympathetic character of man- kind gives rise to these feelings of love and esteem, which are innately associated with the acquisition of wealth and status. In this way, it might be expected that the progression of morals, or at least an evolution of tastes, accompanies or even acts as a precondition for economic progress. However, an evolution of tastes does not necessarily constitute an evolution of morality in itself and Hume is noticeably conservative in his discussion of humankind’s capacity to attain “improvement of judgement.” He states that people “cannot change their natures [...] all they can do is to change their situation,” thus implying that moral advancement is not a consequence of societal progress, at least in the form of industrialisation or greater commercialisation (26). For better or worse, in his construction of moral sentiment as a reflexive phenomenon, Hume sees the cultivation of moral sentiment as secondary to the progress of economics, arts and even politics. Conditioned by custom and the perceptions that an individual holds of his fellow people, moral sentiment cannot actively determine progress but rather is shaped by it. Indeed, it is at this juncture that Ferguson comes into most direct conflict with Hume’s philosophy, as he resoundingly argues that moral progress is not a necessary consequence of societal progress. In fact, he argues that even in polished society, human nature is fundamentally unchanged, although such change would guard against its corruptive tendencies, such as greed: “there have been very few examples of states, who have, by arts or policy, improved the original dispositions of human nature, or endeavoured, by wise and effectual precautions, to prevent its corruption” (27). He verbosely writes of the destructive effects of commercial society, exposing people to the pursuit of wealth within the new commercial machinery of modernity without regard to their actions’ broader societal impacts. The “continued subdivision of the mechanical arts” in the progress of commerce heralds the emergence of an atomised society, where “the sources of wealth are laid open” and humankind, “ignorant of all human affairs [...] may contribute to the preservation and enlargement of their commonwealth, without making its interest an object of their regard or attention” (28). This introduces the notion that commercial society is the crucible where progress gains momentum but also paradoxically creates the corruptive forces that cause its decline: “The mighty engine which we suppose to have formed society, only tends to set its members at variance, or to continue their intercourse after the bands of affection are broken” (29). Ferguson argues that it is only humanity’s natural interest in self-preservation that, with re- flection and foresight, might lead humanity to temper their pursuit of gain so as to mitigate the total destruction of society. It is when these interests stray too far from national interest that society is rendered vulnerable, a risk that Ferguson sees as heightened in commercial society. However, where this interest takes the form of “enlightened interest,” humankind’s superior nature is capable of moderating this raw self-interest to orient it towards achieving something more elevated, namely the “ambition or the desire of something higher than is possessed at present” (30). Introducing an almost normative element to the object of natural self-interest, Ferguson’s philosophy draws closer to his classical predecessors and opens up a space for progress. Ferguson seems to believe that ambition, which might be thought of as the commercial variant of Aristotle’s drive for the proper function of humans, drives progress in society. However, there is undoubtedly a dark side to this ambition, which must be modulated. In order to protect society from unfettered ambition, Ferguson draws further on a quasi-teleological argument. Ferguson locates the seeds of corruption in humankind’s tendency to value material gain—either for the gain itself or the notions of esteem associated with the possession of great wealth—above other virtues more aligned with the public interest. The danger of polished society is this redefinition of virtue along commercial lines: the transferral of “the idea of perfection from the character to the equipage,” such that a pursuit of “virtue” leads to the desire to dominate one’s fellow citizen, subjugating the public interest to the private (31). Although this change in the concept of virtue is deeply troubling for Ferguson, he nevertheless admits that the drive towards this new “perfection of equipage” is a powerful incentive for people to engage in politics, stating that “the desires of preferment and profit in the breast of the citizen, are the motives from which he is excited to enter on public affairs” (32). This introduces a contra- diction in Ferguson’s work. His solution for retrieving bourgeois society from a cycle of progress and decline is to encourage “active political citizenry” among the populace, preventing the spirit of “servility,” which ironically accompanies the rise of industry, from also allowing the rise of tyranny (33). This argument for active political engagement has clear Aristotelian undertones, which become even more explicit in Ferguson’s solution for commercial corruption. In his view, the hope for bourgeois society lies in active political participation, ideally by the individual who might orient their actions to the public interest. In doing so, Ferguson believes the individual might “educate” the lower classes through leading by example and demonstrating how civic virtue might be combined with power and wealth. Such a politician is necessary for preventing public life from being perceived as “a scene for the gratification of mere vanity, avarice, and ambition” instead “furnishing the best opportunity for a just and a happy engagement of the mind and the heart” (34). However, if people enter politics out of purely ambitious motives (themselves the products of polished society’s new idea of perfection) can this ideal politician exist in reality? It is not ambition itself that causes problems, but how the object of this ambition might conflict with the responsibilities of public office. Ferguson makes some attempt to resolve this tension in proposing a cyclical progress of society, though this is also potentially at odds with his linear notion of history, writing that “when human nature appears in the utmost state of corruption, it has actually begun to reform” (35). Although Hume does not fear the corruption and decline of commercial society as Ferguson does, Hume’s theory of justice indicates a conservative view of the extent to which society might progress, particularly in the realm of political innovation. Where Ferguson casts conflict as a means through which political society might develop, stating that “the virtues of men have shone most during their struggles,” Hume strongly guards against rebellion except in the most desperate case (36). In order to prevent a habit of disobedience from arising, Hume argues that rebellion should only be “the last refuge [...] when the public is in the highest danger from violence and tyranny” (37). Since resistance may only be countenanced in the most dire situations, Hume appears to discourage political innovation, at least where it risks rebellion. Recalling how political progress and economic progress appear to go hand in hand in his philosophy, one might wonder whether he foresees a limit on societal progress. In the interests of preserving stability, Hume even discourages political innovation on the part of the wise individual: to “try experiments merely upon the credit of supposed argument and philosophy, can never be the part of a wise magistrate, who will bear a reverence to what carries the marks of age”—he will cater towards societal consensus (38). In this way, individual action is circumscribed, revealing a disconnect between progress at the individual and societal levels, even questioning the ability of the “wise” individual to drive societal progress. One might wonder what the benefits of moral improvement are if the finest person must cater to the most vulgar elements of society. Hume’s philosophy certainly allows for such moral progress but perhaps only to a point, which he regards as the commercialised bourgeois society that he found himself living in and has endless praise for (39). It is almost impossible to separate human nature, morality, and the role of his- tory from Hume’s and Ferguson’s theories of progress. Humankind’s historical context and indeed the level of refinement of the society that humans live in determines the customs that will shape their moral judgement. Being fundamentally self-interested and motivated by sentiment, it follows that people’s actions are directly influenced by the level of civilization manifest in their surroundings. One might worry that basing the promise of societal progress on the power of humankind’s sympathetic nature to direct their actions towards a public interest is inherently unstable, given the inconstancy of their passions. However, it is possible that an attempt to correct this inconstancy would be fruitless considering how societal progress changes what humanity considers virtuous or part of the pub- lic interest. In fact, Oz-Salzberger writes that “wealth, in the modern European state, could no longer be opposed to virtue; ‘virtue’ itself was being transformed into a civil rather than civic, moral framework” (40). It is this transformation of the notion of virtue, produced by commercial society, that Ferguson fears will lead to corruption, both on a moral and societal level. What is perhaps most innovative to the theory of progress that evolves in both Ferguson’s and Hume’s writings is the role of history. In their philosophies, history does not provide a blueprint for how society must progress nor is it deterministic in how the interactions of human societies might grease the wheels of history towards a more polished, liberated end. Rather, history is useful as a sociological instrument for demonstrating how beneficial practices that humans have “stumbled upon” come to be a part of their nature, without fundamentally changing their character. History does not determine morality nor human identity as such but rather provides an extra layer for understanding how human judgement has evolved and why certain customs have gained such power. In fact, history might safeguard societal progress against decline through preserving political wisdom that has been derived from history, encouraging society to learn from humanity’s past successes and errors. As both authors were writing in response to such historical moments as the English Civil War, it would be almost illogical to dismiss history’s role in informing their ideas of progress and corruption, especially when so much of what they wrote was being informed by the lessons of these historical moments—practical manifestations of how people’s actions might be shaped by history. Endnotes 1 See Christopher J. Berry’s The Idea of Commercial Society in the Scottish Enlightenment for a more in-depth analysis of how Scottish Enlightenment thinkers understood “commercial society”, a society that is neither polity nor clan but contains governments and institutions systematic in their division of labor. 2 John Varty’s essay elaborates on how Ferguson, Hume and other thinkers of the Scottish Enlightenment formulated this idea of society’s progression from ‘primitive’ or ‘rude’ society’ to ‘civilized’ or ‘polished’ society. See John Varty, “Civic or Commercial? Adam Ferguson’s Concept of Civil Society,” Democratization 4, no. 1 (Spring 1997). 3 Fania Oz-Salzberger, “The Political Theory of the Scottish Enlightenment,” in The Cambridge Companion to the Scottish Enlightenment, edited by Alexander Broadie (Cambridge: Cambridge University Press, 2003),168. 4 Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals , (London: Hamish Hamilton, 1995), 62. 5 David Hume, A Treatise of Human Nature . Ed. L.A. Selby-Biggs, (Oxford: Clarendon Press, 1978), 415. 6 Hume, Treatise , 496 and 488. 7 David Miller describes this balance between the purely rational and the purely sentimental in the formulation of moral judgements in Hume’s philosophy as ‘mitigated scepticism’ (David Miller, Philosophy and Ideology in Hume’s Political Thought , (Oxford: Oxford University Press, 1984), 41.). 8 David Miller, Philosophy and Ideology , 107. 9 Hume, Treatise , 491-2. 10 Adam Ferguson, An Essay on the History of Civil Society , (Cambridge: Cambridge University Press, 2001), 132. 11 Ferguson, Essay , 120. 12 Ibid, 119. 13 Ibid, 120. 14 Ibid, 230. 15 Ferguson, Essay , 205. 16 From Hume’s History of England , cited in Miller, Philosophy and Ideology, p. 103. 17 David Hume, “Of the Origin of Government,” Essays Moral, Political, and Literary, edited by E. F. Miller, (Indianapolis: Liberty Classics, 1985), 39. 18 Hume states that ‘all plans of government, which suppose great reformation in the manners of mankind, are plainly imaginary,’ (“Idea of A Perfect Commonwealth”, Essays, p. 514). By contrast, Hegel sees human nature as contextual and integrally social. For Hegel, the human mind is “a living unity or system of processes”, and, most importantly, is “world-historical”. Stating that “man is what he does”, Hegel argues that human nature is inherently linked to human action. For more reading on Hegel’s dialectic and his understanding of human nature, see Chrisopher J. Berry, Hume, Hegel and Human Nature (Dordrecht: Springer Netherlands, 1982). in particular 129-146. 19 From Hume’s An Enquiry Concerning Human Understanding , cited in Miller, Philosophy and Ideology, 102. 20 Alix Cohen, “The Notion of Moral Progress in Hume’s Philosophy: Does Hume Have a Theory of Moral Progress?”, Hume Studies, 26, no. 1 (April 2000), 110. 21 Hume, Treatise , 283. 22 Ibid, 415. 23 Miller, Philosophy and Ideology , 124. 24 Hume discusses this in “Of Refinement in the Arts,” Essays. 25 Hume, Treatise . 26 Hume, Treatise , 537. 27 Ferguson, Essay , 195. 28 Ibid, 173. The division of labour, rather than being a form of justice in its Classical formulation, allows for the pursuit of self-interest that does not necessarily contribute to the overall harmony of society. Thus, although such specialisation might enable a general progress in mechanical and commercial arts as each individual devotes. themselves, albeit out of self-interested motives, towards advancing their field of expertise, it also leads to the weakening of an individual’s allegiance to the wellbeing of his society as a whole. This effect is also bolstered by man’s natural tendency to subjugate long-term consequences in the view of short-term gain. 29 Ferguson cited in John Varty, “Civic or Commercial? Adam Ferguson’s Concept of Civil Society,” Democratization 4, no. 1 (Spring 1997), 35. 30 From Hume’s An Enquiry Concerning the Principles of Morals , cited in Lisa Hill, “Adam Ferguson and the Paradox of Progress and Decline,” History of Political Thought, vol. 18, no. 4 (Winter 1997), 679. 31 Ferguson, Essay , 239. 32 Ibid, 245. Indeed, Ferguson argues that ignoring this fact is a corruption in itself: ‘the pretended moderation assumed by the higher orders of men, has a fatal effect in the state.’ (Essay, 245). 33 Hill, “Adam Ferguson and the Paradox of Progress and Decline,” 681. 34 Ferguson, Essay , 244. 35 Ibid, 278-9. 36 Ibid, 196. 37 Hume, “Of Passive Obedience,” Essays, 490. 38 Hume, “Idea of a Perfect Commonwealth,” Essays, 512. 39 Hume indicates what this necessary balance might look like: ‘Some innovations must necessarily have place in every human institution; and it is happy where the enlightened genius of the age give these a direction to the side of reason, liberty, and justice: but violent innovations no individual is entitled to make. (“Of the Original Contract,” Essays, 477). 40 Oz-Salzberger, “The Political Theory of the Scottish Enlightenment,” 169. Bibliography Berry, Christopher J. “Sociality and Socialisation.” In The Cambridge Companion to the Scottish Enlightenment , edited by Alexander Broadie, 243-57. Cambridge: Cambridge University Press, 2003. Hume, Hegel and Human Nature. Dordrecht: Springer, Netherlands, 1982. The Idea of Commercial Society in the Scottish Enlightenment. Edinburgh: Edinburgh University Press, 2014. Cohen, Alix. “The Notion of Moral Progress in Hume’s Philosophy: Does Hume Have a Theory of Moral Progress?”, Hume Studies 26, no. 1 (April, 2000) 109-128. Ferguson, Adam. An Essay on the History of Civil Society. Cambridge: Cambridge University Press, 2001. Gellner, Ernest. Conditions of Liberty: Civil Society and Its Rivals. London: Hamish Hamilton, 1995. Hill, Lisa. “Adam Ferguson and the Paradox of Progress and Decline,” History of Political Thought , 18, no. 4 (Winter 1997) 677-706. Hume, David. A Treatise of Human Nature . Ed. L.A. Selby-Biggs. Oxford: Clarendon Press, 1978. Hume, David. Essays Moral, Political, and Literary, edited by E. F. Miller. Indianapolis: Liberty Classics, 1985. Kalyvas, Andreas and Katznelson, Ira. “Adam Ferguson Returns: Liberalism through a Glass Darkly,” Political Theory 26, no. 2 (April 1998) 173-197. Miller, David. Philosophy and Ideology in Hume’s Political Thought . Oxford: Oxford University Press, 1984. Oz-Salzberger, Fania. “The Political Theory of the Scottish Enlightenment.” In The Cambridge Companion to the Scottish Enlightenment, edited by Alexander Broadie, 157-77. Cambridge: Cambridge University Press, 2003. Pittock, Murray G. H. “Historiography.” In The Cambridge Companion to the Scottish Enlightenment , edited by Alexander Broadie, 258-79. Cambridge: Cambridge University Press, 2003. Varty, John. “Civic or Commercial? Adam Ferguson’s Concept of Civil Society,” Democratization , 4, no. 1 (Spring 1997) 29-48. Previous Next

Two Forms of Environmental-Political Imagination: Germany, the United States, and the Clean Energy Transition Two Forms of Environmental-Political Imagination Germany, the United States, and the Clean Energy Transition Nathan S. Chael Stanford University Author Fabienne Tarrant Lori Kohen Huayu Wang Connor Riley Editors Spring 2019 Download full text PDF (52 pages) Abstract The United States and Germany have followed markedly different paths thus far in the 21st century in their efforts to reduce emissions from energy production and thereby combat climate change through national policy. I extend Professor Jedediah Purdy’s notion of the “environmental imagination” to discuss the “environmental-political imagination,” or implicit vision of the environment, politics, and how they ought to be approached and structured, latent in each country’s central 21st-century climate policy initiative. I find that a general spirit of individuation and conflict marks the United States’ modern environmental-political imagination, while a general spirit of collective enterprise and continuity marks Germany’s. A parallel series of examples is used in each country to illustrate this, including understandings of economy and environment, particular forms of energy and landscape, and ideas of leadership and agency, and finally some objections are considered. I. Introduction “‘We’re the first generation to feel the impact of climate change and the last generation that can do something about it.’ And that’s why I committed the United States to leading the world on this challenge.” [1] – President Barack Obama “Dealing with climate change means facilitating and promoting social and economic change in the best possible way. Germanyʼs Energiewende, or energy transition, is an encouraging example of how that can be done, despite all the challenges its details pose. We intend to continue down this route—with everyone on board, including each individual sector of the economy.” [2] – Dr. Barbara Hendricks, former German Minister for Environment, Nature Conservation, and Nuclear Safety “In a world we can’t help shaping, the question is what we will shape.” [3] – Jedediah Purdy These are, to say the least and state the obvious, complicated political times in both the United States and Germany. From the midst of the complexity and chaos, though, at least one emergent trend stands out: there is a widespread sense that Germany is overtaking at least part of the mantle of global leadership that has characterized the United States’ posture towards the world since the fall of the Soviet Union and before. This phenomenon has been particularly pronounced since the election of President Donald Trump in the US—German Chancellor Angela Merkel has since been pointedly labeled the new “leader of the free world” in numerous news outlets[4]—but is surely reflective of deeper and longer-standing political and ideological currents in both nations. In this essay I wish to trace the legal and philosophical contours of this trend in one particular arena: that of environmental policy, and in particular energy policy. German and American environmental attitudes have, and have long had, marked differences, and these attitudinal differences manifest in a correspondingly deep divergence between the two countries’ environmental laws. A particularly rich and currently relevant pair of examples of this historical disparity can be found in the Clean Power Plan in the United States and the Energiewende, Germany’s 21st-century suite of goals and policies aimed at a transition to a low-carbon economy. These recent federal policy efforts to spur a transition to lower-emission energy sources in each country reveal a distinctive set of underlying contemporary notions about what Americans and Germans take the environment and its value to be—what the legal scholar and historian Jedediah Purdy has called “the environmental imagination”[5]—and, relatedly, what they take the role of law to be relative to the environment. That is, what an appropriate set of energy and environmental policies looks like, what the nation is responsible for in combating environmental problems that affect both its own people and other nations, and what roles its different individual and institutional actors ought to have in creating and advancing those policies. Taken together, following Purdy, I label this set of underlying philosophical views connecting the environment, law, state, and society the “environmental-political imagination” of each nation, and later in the paper will have much more to say about this concept. The structure of the essay is as follows. First, I describe the contents of, and, in a pre-philosophical way, tell the stories of a pair of recent environmental laws/policy initiatives, the Clean Power Plan (CPP) in the United States and the so-called Energiewende, or “energy transition,” in Germany. While this pair merely scratches the surface of German and American environmental law, I show that they constitute a particularly significant set of policies, and comprise a particularly rich contrast for the exploration of the two nations’ dominant ways of understanding the intersection of environment and politics. In the paper’s second section I elaborate upon the concept of the environmental-political imagination and its specific utility here, then argue for a particular characterization of the environmental-political imagination that underpins each country’s contemporary energy policy initiative. The claim at which I arrive comprises the central philosophical contention of the essay: a spirit emphasizing the individuation and conflict of different spheres of activity, landscapes, interests, and agents pervades the 21st-century American environmental-political imagination, while across the same set of diverse aspects, the contemporary German environmental-political imagination is marked by a sharply contrasting and equally pervasive spirit of collectivism and continuity. After arguing for this view, in the essay’s third section I articulate and provide short responses to some potential objections to my argument, attempting to clarify and trace some of its ramifications. Before beginning in earnest, a few notes on the paper’s methodology. First, while German and American environmental law and their underlying imaginative ideologies have rich and compelling histories, rather than sustaining a full historical argument here I confine myself mainly to this century’s developments, using the CPP and recent developments in the Energiewende as contemporary lenses onto deeply historical phenomena for the sake of scope and analytical clarity. Where necessary, however, events deeper in history are discussed; it should simply be kept in mind that in a larger sense all current laws and ideologies are inextricably rooted in historical factors. I shall have more to say later about how we might understand this temporal issue. Second, it will doubtless be noted that establishing unquestionable causal linkages between such concrete phenomena as environmental laws and such slippery, implicit ones as “environmental-political imaginations” is a difficult, nigh impossible, exercise, particularly without the benefit of a full historical account. To do so is not my aim. Instead, this essay is meant to provide a form of rational reconstruction: given the issues and policies in question, how they came into being, and the way Germans and Americans both in and outside government think and talk about them, I aim to give the most plausible and revealing characterization of the underlying logics that root them. Some measure of causality running from these imaginative attitudes to the production of the policies at issue is, I believe, necessarily present (as is some causal connection is from earlier law and policy to these recent attitudes), but the paper makes no attempt to account for all the specific social and institutional factors by which such attitudes are mediated before becoming legally manifest. II. The Clean Power Plan and the Energiewende The issue of climate change driven by anthropogenic greenhouse gas (GHG) emissions into the global atmosphere is fundamentally both an economic and environmental one. Carbon dioxide (CO2), the GHG primarily responsible for increasing global temperatures[6], is emitted in fossil fuel combustion that produces electricity and powers industrial equipment, vehicles, and the many other machines of modern economic activity. The historical causal link between CO2 emissions and economic growth is strong and well-documented[7]. In short, emissions-intensive fuels are the lifeblood of today’s global economy; CO2 emissions, economic production, and climate change thus constitute a tightly linked trio of phenomena, and the United States and Germany are quite similar nations in a host of ways closely related to it. Both are highly industrialized nations with immense economic and emissions output: the US economy is the world’s largest, and Germany’s is fourth largest globally and by far the largest in the European Union (EU)[8]. The US and Germany ranked 13th and 19th in the world, respectively, in per capita GDP in 2015,[9] and 3rd and 8th respectively in per capita CO2 emissions in the same year.[10] The structures of the two economies are strikingly similar: while Germany’s economy is somewhat more reliant on industrial production, both derive about 1% of national GDP from agriculture, between 20 and 30% from industry, and the remaining large majority from the service sector.[11] Beyond these basic economic likenesses, the two federal republics maintain immense bureaucratic apparatuses for research, monitoring, regulation and enforcement related to the environment. Both countries founded federal environmental agencies, the Environmental Protection Agency (EPA) in the US and the German Federal Environment Agency (UBA, for its initials in German), in the early 1970s. Both federal-level agencies help set and enforce national-level policy floors that state-level agencies enforce and can augment in their jurisdictions (though, as will be discussed in greater detail, Germany’s federal environment apparatus has expanded significantly since the founding of the UBA).[12] From a distance, then, the two nations appear to share a basic economic and governmental structure relative to environmental issues, with some history in common to boot. Despite social and cultural differences, this might suggest that the United States and Germany would pursue the transition to low-carbon economies based on clean energy along similar pathways. Yet the two nations have in recent years diverged drastically in their federal policy efforts to facilitate this transition. The CPP and Energiewende constitute the central components of this divergence. Though they cannot capture all there is to say on the issue, they provide a striking contrast that will allow for interrogation to its heart. For a brief examination of the facts of each, I turn first to the US and then to Germany. A. The Clean Power Plan The CPP emerged from a context of hesitation and failure on the part of the US government to regulate GHG emissions. In 2007, the Supreme Court in Massachusetts v. EPA ruled that the EPA had the authority and duty, if it found CO2 to be a driver of climate change, to regulate CO2 emissions and thereby combat climate change under the Clean Air Act.[13] The decision, while empowering the EPA to promulgate the rule codifying the CPP eight years later, was actually a defeat for it at the time: the Bush-era EPA did not wish to regulate CO2 emissions, and argued in the case that the Clean Air Act did not cover them. Two years later, legislative efforts to regulate emissions through a “cap-and-trade” scheme similar to the EU’s, wherein a legal limit of GHG emissions is set and emitters can buy and sell permits to emit beneath that cap,[14] failed when the American Clean Energy and Security Act (also known as the Waxman-Markey Bill) passed the House but was never brought to a vote in the Senate. The deadening impact this had on federal climate action, early in Obama’s first term with Democratic majorities in both legislative chambers, was palpable: in Purdy’s view, “when Waxman-Markey failed, a whole generation of reformist thinking went with it.”[15] Frustrated by legislative stagnation, President Obama later directed the EPA to formulate a rule regulating GHG emissions in the power sector.[16] This rule ultimately became the Clean Power Plan, an EPA regulation designed to decrease power-sector CO2 emissions by 32% by 2030, relative to 2005 levels, by instituting emissions guidelines for fossil fuel-fired power plants and directing states to create and implement their own such standards.[17] About 40% of US CO2 emissions came from the power sector in 2005,[18] so other things equal the CPP alone would cut total US emissions over 12% between 2005 and 2030. This would be the largest legally-mandated emissions reduction in US history, and, accordingly, upon its announcement President Obama labeled the CPP “the single most important step America has ever taken in the fight against climate change.”[19] However, backlash to the CPP from industry and political groups was immediate and intense. Also, before the rule could take effect, the Supreme Court issued an order blocking its entry into force until all litigation challenging it was complete.[20] Then, after President Trump took office, he ordered the EPA to review it, and an EPA proposal to repeal it was soon unveiled.[21] While the CPP remains technically alive as of this writing in August 2018, its repeal is expected to be officially complete soon. When that happens, the rule that the Harvard Environmental Law Program has called “the crown jewel of America’s international climate commitments”[22] will be dead before it ever came alive. The CPP was designed to reduce CO2 emissions predominantly by decreasing the use of coal-fired power plants, which have high emissions intensity relative to other energy sources.[23] Market forces, coincidentally, have recently made a major impact in the direction intended by the CPP, as a dramatic shift in energy prices caused by cheap natural gas usage from shale sources has taken place. US CO2 emissions rose steeply from 1990 to 2005, when shale-sourced natural gas hit the market,[24] and have dropped 12% since then.[25] Still, bracketing this fortunate trend, the overall picture of US climate progress is less rosy: annual US GHG emissions remain about 2% greater than they were in 1990.[26] In the absence of any prospect of federal action to aggressively cut emissions, and in light of President Trump’s 2017 decision to withdraw from the Paris Agreement, many cities, states, and private enterprises have taken matters into their own hands and pledged to enforce their own emissions cuts.[27] B. The Energiewende The idea of Energiewende , or “energy transition,” in Germany goes back to the late 1970s and early 1980s, when environmentalist groups opposed to nuclear energy and fossil fuels called for a transformation of Germany’s energy sources in the wake of nuclear plant construction and the 1973 and 1979 oil crises.[28] However, the term did not describe a substantive policy initiative until the turn of the millennium, when Germany’s governing coalition of the Green Party and the center-left Social Democrats began to take widespread action to promote a transition to new forms of energy production. Since the passage of the first Renewable Energy Sources Act in 2000, Energiewende has become shorthand for a vast array of goals and timetables for renewable energy production and emissions cuts, research reports supporting these goals and timetables, and legal requirements enforcing them.[29] The action of the Energiewende is not localized to one federal ministry or even branch of government. Instead, its regulations spring from multiple sources: administratively, the Federal Environment Agency (UBA), the Federal Ministry for the Environment, Nature Conservation, and Nuclear Safety (BMU), and the Federal Ministry for Energy and Economic Affairs (BMWi) all play a part in setting and realizing its goals. The chancellor and legislative branch are heavily involved in Energiewende policy creation as well. The key reports and policy components of the Energiewende are as follows. 2000’s Renewable Energy Sources Act (EEG) guaranteed a twenty-year period of high prices for electricity from renewable sources sold into the grid,[30] and was updated in 2004, 2009, 2012, 2014, and 2017 to increase the law’s renewables targets and adjust its pricing mechanisms.[31] 2007’s Integrated Energy and Climate Programme, also known as the Meseberg decision, approved a package of fourteen new laws and amendments to provide a policy basis for the doubling of Germany’s emissions reductions targets for 2020 from 20 to 40%, compared to 1990 levels.[32] A long-term plan for Germany’s use of various sources of energy in different sectors was approved in 2010 as a cornerstone of the Energiewende ,[33] and in 2014 and 2016 the federal cabinet approved long-term climate action plans for 2020 and 2050, respectively.[34] In addition to CO2 reductions and renewables increases, a central and heavily publicized component of the Energiewende is its move to abolish nuclear energy production in Germany. After the Fukushima nuclear disaster in 2011, in which a magnitude 9.0 earthquake off the coast of Japan triggered a tsunami which caused a meltdown at the Fukushima Daiichi nuclear plant, the German government under intense public pressure announced plans to immediately cease operations of eight of its oldest nuclear power plants, with all remaining nuclear plants to be closed by 2022.[35] The Energiewende , for all its progress, has been enormously expensive. Much of the cost of the heavy renewables subsidies has been passed onto consumers: a renewables surcharge on utilities bills has raised the average household’s monthly fee by 50% since 2007.[36] Moreover, the decade-long sprint to close the nation’s nuclear plants necessitates a costly rapid increase in the use of other sources, since Germany has long sourced a large portion of its power supply from nuclear energy.[37] Even beyond costs caused by solar subsidies and cuts to nuclear energy, the Energiewende today faces other challenges: for instance, due to recent rapid economic and population growth, German CO2 emissions reductions have stagnated since 2014 and the country will therefore likely miss its 2020 target.[38] The fact remains, though, that through a concerted policy effort Germany has cut its total CO2 emissions over 26% from its levels in 1990 (the key baseline year for emissions reductions in international climate policy). In absolute terms, it has cut emissions more than any other EU nation since then,[39] and since the passage of the EEG in 2000 it has sextupled its electric power production from renewables, mainly wind and solar, to a full 36% of national supply in 2017.[40] This is an enormous figure by global standards. The Energiewende , though costly and facing obstacles, has made impressive strides. Thus we have two modern, industrialized, immensely productive nations, expected to be regional and global leaders on a variety of issues, with markedly different policy responses to the climate and energy problem: one with a climate policy crafted, immediately challenged, and quickly repealed upon a change of government, and the other making imperfect but steady progress. Furthermore, despite the two countries’ basic similarities, few today would be surprised by this stark contrast. It is generally understood that Germany, to use the jargon of energy policy circles, is “ambitious on climate,” while the United States is not. For the remainder of this paper, I aim to use the facts of these two policy initiatives and their development in order to interrogate this general understanding rather than take it for granted, and thereby go a level or two deeper into the human reasons that might explain why it, and certain facts adjacent to it, hold. Such major differences in the two nations’ contemporary laws on energy and climate provide important loci for insights into the imaginative and ideological characteristics of these nations with respect to politics, law, and the environment. Since these policies mandate (or, in the case of the CPP, attempted to mandate) how they, as states and societies, must respond to climate change, such differences provide comparative lenses onto how Germany and the United States view their relationships to their own populations and other nations that climate change will harm, and to the natural world which provides the resource basis for their economic production and which they in turn affect through greenhouse gas emissions. As Purdy puts it, “Law is a circuit between imagination and the material world”[41]; the laws that exist came about through processes expressing an underlying imagination, and can be expected through the realization of what they require to influence the imagination of the future. Examining this pair of policy initiatives, then, what imaginative structures underlying German and American environmental and political life could help account for this vast difference? III. The Contemporary German and American Environmental-Political Imaginations via the CPP and the Energiewende Before laying out dominant features of the two nations’ environmental-political imaginations, I must briefly elaborate upon the concept of the environmental-political imagination itself, and clarify how it relates to Purdy’s concept of the environmental imagination. Neither concept refers directly to the explicit ideological statements parties make in their environmental platforms, nor theories of the true, the good, or the just in tracts on environmental or political philosophy; as Purdy says, “Imagination is less precise, less worked out, more inclusive than ideas, and it belongs to people in their lives, not philosophers working out doctrines. Imagination is a way of seeing, a pattern of how things must be.”[42] It might be thought of as taking place on the mental level prior to ideology, or as ideology’s raw material. It has to do with the way people, individually and in institutions, think and make assumptions about what exists in nature and the human world, how those things are organized, what is valuable about them, and what ought to be done with them, here in particular with respect to climate and energy, and the collective decision-making proper to the political sphere. It is an implicit, blurry set of notions, perhaps internally contradictory, largely submerged or subconscious, that acts as inputs in the formation of laws and policies that then make explicit what may and may not be done. I borrow this framing of “imagination” from Purdy, but employ it in the discussion of somewhat different material from what is referred to by his concept of the “environmental imagination.” As Purdy uses it, the environmental imagination refers primarily, though not exclusively, to how people understand and act upon the environment at the level of landscape, rather than atmosphere and climate.[43] While Purdy acknowledges that, in the future, different nations or regions might develop their own “ethics and politics of climate change,”[44] he does not examine in a descriptive sense how such different environmental-political imaginations are already at work in different places. My analysis here is meant to fill this gap, to focus on the particular environmental, economic, and political issue of climate change and explore how the US and Germany are in fact seeing and acting upon it by using Purdy’s framing of the environmental imagination as a conceptual starting point. Purdy’s political focus is mainly on how people’s imaginative notions of the environment work their way into political life, since decisions about how to approach and use the environment are made in the political sphere. I wish to inquire further about Americans’ and Germans’ imaginative notions of politics itself: their notions and assumptions about what politics is like, how government ought to be organized and decisions made, and what we owe to others inside and outside the polity. Thus the imagination discussed here is itself both environmental and political. Also, since I shall discuss not only how people imagine the climate or the atmosphere but also how their imaginative notions of the environment—generally, of nature overall—affect their nations’ action on climate specifically, “environmental-political” is more appropriate than “climate-political.” The term thus seemed to be the best fit for a capacious idea that extends Purdy’s notion in a logical way. A. The 21st-Century American Environmental Imagination The contemporary American environmental-political imagination, as seen through the story of the Clean Power Plan, can best be characterized by a sensibility of individuation and conflict. By a sensibility of “individuation,” I mean that there exists a pervasive imaginative stress on the sharp divisions among different problems, parties, and conceptual categories of environment and politics, rather than on their continuities; particularly emphasized is the split between the environmental and the economic spheres. Normatively, there is a corresponding imaginative insistence that starkly individualized approaches to such disjoint issues must be appropriate. By a spirit of “conflict,” I mean that these individuated issues, categories, and parties are often imagined as necessarily at odds with one another: there is a powerful sense that trade-off and adversarial relations are inherent to them and to climate change in particular, and that such conflict cannot be overcome by any sense of reconciliation or unification. Individuation is the more fundamental of the two descriptors here, frequently accompanied with an adversarial tone, since two ideas, issues, outcomes, actors, and so on can only be viewed as conflicting if they are first given sharp individuating boundaries. To illustrate this, I marshal a range of evidence from the CPP and beyond to investigate three aspects of the United States’ environmental-political landscape: its view of the relationship between the categories of the “economic” and the “environmental”; its understanding of particular American landscapes and coal, a particularly significant form of energy; and its latent conception of leadership and agency on climate action. A1. Environment and Economy The American environmental-political imagination contains, first and foremost, an insistence upon a sharp distinction between the economic and environmental spheres. “Economic” and “environmental” are not understood as merely two ways in which to view a larger human-natural system, two modes of its measurement that can be usefully distinguished, but instead as two ontologically distinct categories which in practice ought, so far as possible, to be governed by different procedures and norms. In the context of the CPP, this can be initially seen from the law’s institutional backdrop, the structure of which reflects a sharp conceptual disconnect between economy and environment. President Obama instructed the EPA, and the EPA alone, to prepare what became the CPP.[45] It is true that the EPA was created during a time in American history when recognition of human-environmental interconnection was ascendant,[46] and aids human safety through its insurance of clean air and water, but the EPA is explicitly dedicated to environmental protection alone rather than some larger joint goal of environmental-economic harmony. The implicit assumption in much of its work is that the environment is distinct from the economy and other human spheres and will need to be guarded against them. Some EPA officials have even suggested that the EPA has done its job of ensuring clean air and water too well, such that many Americans lose sight of ways in which economic production impacts the environment.[47] Conversely, the US Department of Commerce, the cabinet ministry that proclaims to be tasked with just “one overarching goal: Helping the American Economy Grow”[48] (emphasis in the original), mentions no environmental, ecological, or sustainability concerns in any of its five strategic pillars that support its central aim. Thus in the executive branch’s structure, the concepts of environment and economy are thoroughly and formally separated. The Department of Energy (DOE) might be expected to mediate the two, but it has a strong defense and pure research bent: at once handling nuclear weapons research, nuclear energy research and operations, and clean and fossil energy research. These specifics of bureaucratic organization may seem somewhat arbitrary, but they dictate both how federal agencies’ fields of action are defined and approached and how official discourse regarding those fields is expressed in public. I submit that both of these have significant consequences for how Americans perceive environmental, economic, and energy issues and their nation’s ways of handling those issues. In the context of this division of labor, President Obama’s executive assignment of the CPP’s preparation to the EPA alone appears symbolic of where climate change fits into the American environmental-political imagination, representing the official assignment of US action on climate change to the environmental sphere alone rather than the economic one. The huge backlash against the CPP illustrates the conflictual, not merely individuating, nature of this aspect of the environmental-political imagination:[49] many perceived the CPP as a conferral of environmental benefits and therefore also a sentence of concomitant economic sacrifice and degradation. A host of challenges were immediately raised against the proposed law, and the ensuing political warfare was intense.[50] This is deeply ironic in light of the fact that the government’s own study of the Clean Power Plan indicated that, in fact, due to long-term increases in energy efficiency, savings on climate adaptation costs, and savings on health expenditures due to reducing vast quantities of harmful fumes like sulfur dioxide in the air, it would likely have saved the US billions per year by 2030 relative to the status quo.[51] Much has been made of the idea that organizations like fossil fuel companies, many of which stand directly to lose from a transition to low-emission energy sources and lobbied hard against the CPP,[52] are the real villains preventing America’s energy transition. Coal and oil companies certainly lobbied hard against the CPP and may have played a large role in spreading the notion that emissions reductions, like environmentally beneficial policies generally, necessarily conflict with economic benefits. However, it was not merely these companies that voiced their concerns: amid both an outpouring of support for and backlash against the proposed rule, the EPA received over 4.3 million comments on it in six months.[53] Much has also been made of the deep partisan divide on belief in and concern about climate change itself,[54] which tracks the two parties’ divergent emphasis on action to protect the environment and action to aid the economy. This divide was clearly visible in the battle over the CPP, for instance, when the 11 Senate Republicans of the Environment and Public Works Committee issued a letter in support of repealing the CPP in 2017 that made no mention of the environment or climate change. That letter mentioned only “the pervasive, negative effects [the CPP] would have had on Americans across the country. The CPP would have driven up energy prices, eliminated American jobs, and hurt local communities that depend on coal.”[55] Importantly, though, the imagined conflict between economic and environmental benefits on climate change policy cannot be merely a result of American partisanship: that Democrats and Republicans predictably gravitated to their sides of that conflict on the Clean Power Plan means that the idea of the environmental-economic conflict itself was already generally accepted, and action to counteract climate change has simply been imaginatively sorted mainly into the pro-environment rather than pro-economy category (this is not to say, however, that both parties are exactly equally narrow-minded in their understanding of climate change). The imagined disconnection and conflict between the two spheres is thus fertile ground for, rather than a simple output of, increased partisan division. Also, while I will not examine the American imagination of markets in depth here, there seems to be a notable similarity between the way Americans notionally separate the economy and the environment and the well-recognized way they notionally separate markets and government intervention in the economy. It seems that in America, pro-environment action is imagined as government interference into the workings of the market, and for that reason is anti-economic. This is despite the fact that in practice governments always set the rules of the market in the first place, and that in many cases, like the CPP, government action would increase overall economic welfare in the context of the market’s failure to internalize all costs. That the CPP’s emissions reductions would actually save America money and relieve it of immense human suffering in the long term might have saved it in another time or place, but could not in the contemporary United States. A2. Coal and Landscape Beyond the pronounced economic-environmental distinction, another form of individuation prominent in the American environmental-political imagination and visible in the narrative of the CPP is the uniqueness assigned to the landscape of America’s coal mining country, along with an associated imaginative privileging of coal miners themselves and their imagined conflict with nature to extract its energy. This reflects a more general American notion that a sharp definitional line ought to be drawn between particular landscapes, and between them and humankind, a notion easily recognizable in American lore and law historically; one example of this is the Wilderness Act of 1964, which provided for protected, isolated areas that would remain “untrammeled by man” and would each keep their “primeval character” in spite of an expanding, modernizing population.[56] However, in the realm of energy production, a somewhat different individuating mood is at work than in wilderness protection, one that associates specific energy resources with specific landscapes and imagines a zero-sum conflict for primacy between them. The CPP would have achieved its emissions reductions mainly through cuts in the use of coal-fired power plants.[57] As the letter from the Republicans of the Senate Committee for Environment and Public Works illustrates, a key source of opposition to the CPP was a sentiment that the nation’s jobs in coal production must be politically protected. As with the CPP cost-benefit analysis indicating that in the long term the plan would actually have been economically profitable, here too there is a deep and ironic seed of irrationality; just over 160,000 Americans work in coal production, less than half of the number involved in the fledgling solar industry, which the CPP would have benefited,[58] and coal production has already steeply declined because of market forces alone, with cheap natural gas largely supplanting it since 2005.[59] Simple interest-group politics are always, of course, a factor, and support for coal jobs as a public position is due in large part to the rhetoric of President Trump, who has thrust coal production incessantly into the political arena, making it a more partisan issue and implicitly highlighting its racial associations (and, though not discussed extensively here, race is yet another sphere of deep divisions in the American environmental-political imagination, as, for instance, the work of the environmental justice movement has sought to show).[60] However, as Republicans and Democrats seized upon rather than created an imagined fundamental conflict between the economic and environmental spheres, President Trump seized upon rather than created the American glorification of the coal industry and its imagined battle with forms of energy hostile to it. Many Americans view coal miners as an interest group with a special claim to reverence, in some sense especially American, their connection to coal country’s lifeways and landscape that is morally and aesthetically unimpeachable even as they level its mountains and plumb its depths for the dirtiest fossil fuel available. Our version of fascination with and elevation of coal is uniquely American. Millions of Americans outside of coal country are able to glorify coal production imaginatively, thanks in part to the very fact that they have never been to coal country, because coal is closely associated with one of America’s many distinct, individuated landscapes, cultures, and forms of productive connection to the environment. Oil is certainly imaginatively American, in the sense that it can make one rich quickly. But no other source of energy evokes the sort of hardscrabble, manful battle with nature that coal does, up in the mountains and away from the friendly confines of civilization. Actual coal production, of course, is much less attractive than it is imagined to be in its symbolic overcoming of an unfriendly nature: as Purdy notes, “mountaintop-removal mining dynamites hills and hollows into a flat, treeless terrain and buries many hundreds of miles of Appalachian streams.”[61] But politically, huge swaths of the country lionize it for its imaginative associations, and even those who resist this celebration must engage with and seek to erode that picture of it. The point is not that no Americans recognize that burning coal pollutes the atmosphere intensely and that relatively few Americans actually make their living in its industry; it is that the fact that the US has been collectively unable to privilege other goals, such as combating climate change through the CPP, over its glorification of the unique landscape and culture of coal bespeaks a deep temperamental inclination toward the particular and the adversarial in the way the nation imagines what ways of relating to the environment ought to be honored and preserved. Coal also plays a role in the notion of the US as particular and individuated itself because of the role it plays in contributing to US energy independence. The US, despite what political advertisements advocating drilling in yet another remote wilderness might have you believe, is highly energy-independent—on net importing just 7% of its total energy use.[62] This fact provides one strut undergirding the spirit of individuation latent in how the nation views itself globally on climate change. In keeping with its degree of energy independence, there is little sense that the country is truly indebted to other nations in the energy arena. A logic therefore prevails that, politically, it is the United States’ right to individuate itself in the international discourse on climate change. This is true even prior to Donald Trump’s explicit protectionism and withdrawal from the Paris Agreement, an ultimate act of individuation; the resonance of his “America First” message, despite its multiple valences, can at least partially be attributed to a widespread sentiment that America is not necessarily dependent on the rest of the globe and can therefore act on its own terms in international affairs. Accordingly, when it is not refusing to participate on a particular issue, it is seen by much of its own population and government as the proper global leader on that issue. This is true of America’s action on climate change through the Clean Power Plan, and I therefore turn now to sketching the particular ideal of American leadership on climate change manifest in the law’s progression. This ideal is glory-seeking and exceptionalist, placing the US on an imagined pedestal above the other nations attempting to reduce emissions. A3. Leadership and Agency While setting about repealing the CPP, the Trump administration has made an extravagant claim about American leadership on climate change: that, because it cut emissions more than any other nation in 2017, it is therefore “leading the world” on addressing climate change overall.[63] These claims are transparently based on bad-faith: the US is the world’s second-largest emitter, far ahead of third place and only behind China that has coal-fired its way to yearly emissions increases since 2000,[64] so any proportionally nontrivial American emissions cut in 2017 was likely to be the world’s largest in absolute terms that year. Moreover, this “world’s largest” title is just one year old, and is due basically entirely to market forces making it increasingly uneconomical to use coal[65] even as the Trump administration attempts to prop it up through the repeal of the CPP. Nonetheless, Trump’s administration is not the only one in the CPP era to loudly proclaim American climate and energy leadership when the full facts of the situation did not support it. As noted in the paper’s epigraph, Obama claimed upon announcement of the CPP that he was “[committing] the United States to lead the world on this issue.”[66] In hindsight, given Trump’s cancellation of the CPP and withdrawal of the US from the Paris Agreement, Obama’s idealistic portrayal of the CPP as a legal and political commitment to US climate leadership may look like little more than a cruel joke of history, a genuine and dignified gesture of America’s desire to lead for the greater good twisted into a dark irony by a shift in the political winds. Even at the time, it made little sense in light of how much had been accomplished in other portions of the developed world: by 2015, Germany had 15 years of experience with renewable energy tariffs, had set 2020 climate targets, and the whole EU had agreed on 2030 targets with a decade of emissions trading experience behind it.[67] Obama’s insistence on American leadership despite this mountain of evidence indicating that the US was far from a position to lead on emissions reductions is therefore revealing. He was certainly aware of how truly far behind America was in 2015 on climate action, but singular American leadership was nonetheless a central thrust of his pitch of the CPP to the American people. Obama’s rhetoric reflects an American sensibility that, on environmental issues like all others, the US must be unique, particular, special, glorious. This sense of entitlement to climate leadership on the global stage manifests today not in widespread federal government action, but in the individual person of the president. The unilateral actions of Presidents Obama and Trump on the CPP—Obama singly directing the EPA to create it, Trump singly directing the EPA to review and replace it—express, despite their different circumstances, a sense of deserved presidential individuality: that is, a right to define America’s international climate leadership in one’s own way regardless of its previous instantiations. Beyond making for less stable policy, this feature of contemporary American climate politics has the effect of being, if not anti-democratic, only minimally democratic: whichever section of the population elected the last president gets to determine policy on climate and energy, regardless of later public opinion[68] and congressional intervention aside. Any major climate action requires governmental leadership, but the current American version, with its current structure of top-down leadership, leaves little room for individual Americans to play a major role in a clean energy transition. They are simply not viewed as important actors in this context. Their support is not needed, and political leaders do not think to call upon them to help in direct action on climate and energy. Even when Obama did connect environmental concerns, economic ones, and ordinary Americans in his rhetoric on the CPP, he argued merely that it would help keep energy “reliable and affordable for American businesses and families,”[69] which is not exactly a moving call to purposeful collective action on an issue of immense national and global importance. Meanwhile, while millions of Americans, mainly along partisan lines, recognize climate change as a serious problem and some individuals among them have achieved success in discussing it an environmental, economic, and political issue,[70] there has been no grassroots climate movement that has been successful in shifting the national conversation overall or forcing government action. Obama’s unilateral move to force action in a government gridlocked along party lines is ample evidence of this point. A true change in the American popular consciousness analogous to, say, what followed Rachel Carson’s Silent Spring seems out of reach on climate in this moment. Ironically, then, the general pattern of individuation of, and emphasis upon the political import of, distinct institutional actors, relevant landscapes, and concepts of different human and environmental spheres in the American environmental-political imagination fails to elevate the individual himself or herself. Thus a particularly executive-focused version of what is often labeled “American exceptionalism” plays a prominent role in the American environmental-political imagination of climate, as seen through the story of the CPP. But an idea of American exceptionalism is not the fundamental category in that imagination; instead, it fits into its larger spirit of partitioning and antagonism among different notional elements, a sense that—despite the idea that climate change ought to be siloed in the environmental sphere and ought to have no claim on activities outside it—the United States must stand alone at the head of the world’s climate change-battling ranks. This imagination is thus both particular to the environmental-political realm and simultaneously reflective of well-recognized aspects and assumptions of American cultural life. Perhaps nothing captures this better than that the US’s spirit of partition and individuation is not an admission of limitation in each partitioned sphere, whether it be the realm of international affairs, executive leadership, the economic sphere, the environmental, or one of the many landscapes Americans insist upon as particularly special. Instead, this partition bespeaks the idea that by conceptually and legally separating each from the other, the US can grasp the infinite in each; it needs not face limitation; it can have its cake and eat it too. This truth of the environmental-political imagination holds now but is profoundly historically rooted: as Purdy notes, “American democracy had taken shape in historically unique exemption from the basic problem of modern and democratic politics: the problem of managing conflicting interests and values in a world of relative scarcity.”[71] That foundational thread is still clearly visible today. B. The German 21st-Century Environmental Imagination In a deep contrast to its American counterpart, the essential spirit of the contemporary German environmental-political imagination, as viewed through the lens of the Energiewende , can be described by a spirit of continuity and collectivism. The German environmental-political imagination is marked by a sensibility that highlights the ways that humans and the environment are interconnected, believes that all sectors of the human population can (indeed, can only) progress by stewarding nature responsibly, and responds with a persistent, determined concentration upon collectively undertaken gradual reforms designed to benefit domestic society, provide leadership to global society, and preserve nature all at once. In some sense, this notion is similar to the ecological form of the American environmental imagination that Purdy describes, dominant in the latter part of the 20th century,[72] but it is more expansive: it does not merely attempt to capture a fact about how the natural world and humankind are necessarily continuous with each other, but extends also to how different sectors of the human population are interdependent, both inside and outside Germany, and is charged with a forward-looking normative temperament that emphasizes social solidarity in collective action both across society and across time. In order to parallel the American case, I again explore how the economic and environmental spheres are imagined to relate to one another, how culturally important forms of energy and landscape play into prevailing beliefs about how the Energiewende ought to be managed politically, and how leadership on reducing emissions is viewed. As in the American case, critical interpretation of the discourse and structure of government provides the primary evidence base, but a range of other sources, like political party platforms to public opinion polling, supports this characterization as well. B1. Environment and Economy The way the Energiewende is discussed by its prominent advocates, policy leaders, and involved government ministries generally integrates humanity and nature, conceptually fusing notions of what benefits the German economy and what benefits the climate and environment. It evinces a recognition of the interconnectedness of human and environmental systems and an ethic of responsible stewardship of both simultaneously, with neither given fundamental priority, even as it eschews the tone of more traditionally environmentalist rhetoric emphasizing a profound spiritual interconnectedness of man and nature. For example, the very name of 2007’s Integrated Climate and Energy Action Programme, even as it heads a highly technical package of legislation that lays out specific binding mechanisms for Germany’s transition to clean energy, suggests continuity between the natural climate system and humanity’s economic system. The government’s announcement of this package of legislation makes explicit the perspective of unified economic and environmental goals that the name suggests: “The German government's guiding principles for energy policy remain the three objectives of security of supply, economic efficiency and environmental protection.”[73] In the government’s view, these objectives, while they can be usefully distinguished, are not in a deeper sense truly distinct and competitive, with ever-unavoidable trade-offs that must be weighed and decided. If in some cases trade-offs are present, they are not allowed to distract from the larger continuity of the economic and environmental spheres; individuation and competition do not constitute an imaginative focus. Instead, economic ends and climate action are understood as mutually reinforcing: “Efficient climate protection modernises the economy and society.”[74] This language of modernization is telling: in the German environmental-political imagination, human and environmental interconnectedness does not demand the abandonment of current technology or a return, even temporarily, to a pre-industrial way of being, as the American romantic imagination might have it.[75] Instead, humanity can become more modern even as it effectively stewards nature, and along with economic-environmental interconnectedness there is a continuity between today’s Germans and future generations, to whom Germans owe fair treatment. [76] The name of 2010’s Energy Concept for an Environmentally Sound, Reliable, and Affordable Energy Supply (henceforth simply Energy Concept) similarly weaves together economic and environmental goals. The Energy Concept describes a plan to attempt to achieve both, arguing that emissions reductions are not just helpful but fundamental for German economic success, and proclaiming that “a high level of energy security, effective environmental and climate protection and the provision of an economically viable energy supply are necessary for Germany to remain a competitive industrial base in the long term”[77] (emphasis mine). The government’s Climate Action Programme 2020 claims that “Germany benefits from its pioneering role in climate change mitigation. The technical, cultural and social innovations it entails create added value especially for small and medium-sized companies.”[78] Such examples of federal agencies proclaiming the economic benefits of climate change-combating emissions reductions are, in short, abound. However, notably, despite the extensive discussions of the Energiewende ’s potential benefits for the German economy in government publications, none appear to assert economic health as the fundamental reason for why the Energiewende is worthwhile. The vision is instead one of a healthy, collective balance of economic and environmental goals that are irreducibly worthy and in some ways inextricable. Parallel to how American federal agencies institutionally embed the imaginative view of economy and environment as sharply individuated seen in the narrative of the CPP, the German institutional setup reflects a perception of them as integrated, with neither given explicit priority over the other. For example, rather than having a single agency for environmental protection to which CO2 emissions regulations are assigned, in Germany three agencies split the bulk of the Energiewende : the Federal Environment Agency (UBA), the Federal Ministry for Environment, Nature Conservation, and Nuclear Safety (BMU), and the Federal Ministry for Energy and Economic Affairs (BMWi). Although divisions between these bureaucracies are helpful for defining which organization focuses on which aspect of the Energiewende, there is clear continuity in the categories and the goals relative to which emissions, sustainable development, and climate are discussed across agencies, as the quotations from multiple agencies in the reports cited above illustrate. The Energy Concept, for instance, was prepared jointly by the BMU and BMWi. The economy is not entirely treated as linked to the environment—there is also a ministry for economic cooperation and development, and of course one for finance[79]—but the BMWi’s deep involvement in the Energiewende shows that on energy issues the economy is not seen as a removed and independent entity to be managed apart from its inescapable linkage points with the natural world, nor is the environment to be managed without due consultation of economic experts. The institutional realization of these viewpoints came early in the Energiewende era, with departmental reorganization in 2005. Also, constitutionally, the German system is conceptually friendlier to the objective of environmental protection than the American one, and has become even more so in recent history. For example, since 1949 the Grundgesetz (GG), Germany’s Constitution, has provided for the “protection of the natural foundations of life and animals” by executive, legislative, and judicial action, with explicit reference to the nation’s responsibility to future generations.[80] A round of GG reform was completed in 2006, granting the federal government more powers in environmental policymaking.[81] German constitutional tradition also allows for the subordination of private property to environmentally protective uses on the basis of social welfare and human interconnectedness: “The potential obligation to ‘sacrifice’ [one’s] property rights to public needs derives from the concept of a ‘situational commitment of the property’ that follows from the view of man as an individual who is dependent on society.”[82] Thus it appears that a German perspective of environmental and economic solidarity is deeply built into the German legal and political consciousness,[83] with neither sphere deserving of absolute priority, and the legal foundations of this view have evolved alongside the Energiewende overall. By contrast, in the absence of explicit constitutional discussion of how nature is to be safeguarded, in the US environmental protection has been defined primarily with reference to and in implicit subordination to the economy: the major US environmental laws derive their constitutional power from the Commerce Clause’s permission for the regulation of interstate commerce.[84] In addition to the foundational structure of the German government that evinces a prevailing integrative imagination of the environment, society, and how they should be legally approached in the Energiewende , several other popular sources suggest a similar conceptualization. One is the ways political parties express themselves in their bids for citizen support. That the Green Party has been influential since the beginning of the Energiewende , and governed in a coalition with the Social Democrats, is a powerful statement of a popular German belief that environmental considerations should be built into political decision-making. Even more revealing, though, is the stance of the Christian Democratic Union (CDU),[85] Angela Merkel’s pro-business, center-right party. While the Republicans in the US have understood 21st-century pro-business conservatism to require general opposition to new environmental protections, the CDU has since 1978 included an environmental pillar alongside its three core party pillars focusing on economic growth. The phrase they used when adding this pillar was “quality-oriented growth,”[86] conveying the notion that proper economic progress and proper environmental stewardship are intertwined. That year’s platform included the following statement articulating how the party viewed the connection between freedom and responsibility, and the social interconnectedness between generations: “The conservation of our life support system is part of the responsible liberty. He who now irresponsibly exploits this system and alters the environmental relationship damages the solidarity between generations.”[87] In 1989, the CDU advocated a tax on CO2 emissions in keeping with an explicitly religious desire to properly care for Creation.[88] All this—which would sound confidently liberal, if not outright radical in the United States—stemmed from Germany’s main conservative party, which has been the one constant in a series of coalitions overseeing the Energiewende from the German Parliament since 2005. Thus, while highly visible in the policy prescriptions of the Energiewende since the turn of the century, the interconnected German imagination I describe has its roots in long-held popular understandings of what nature is and is for, how economic growth ought to be understood, and how citizens of different social stations and ages bear responsibilities to one another. B2. Nuclear, Coal, and Landscape Like as with the passage of and response to the CPP, particular sources of energy and their associations with culture and landscape have figured prominently in the story of the Energiewende . In Germany, both nuclear energy and coal have been hotly debated. Nuclear energy has been at the center of discussion because of a tension between its convenient lack of emissions and popular sentiment against it, and coal for the exact opposite reasons: its high emissions and historical association with German identity. Unlike the executive-led course reversal in the American case constituted by the CPP repeal, however, the German response to these difficulties has been to alter its path to the Energiewende ’s original goal of emissions reductions by phasing out nuclear energy and reducing the use of coal.[89] In doing so, Germany has collectively displayed a persistence and willingness to sacrifice for the sake of the demands it believes follow from its interconnectedness with nature and with other nations. The abolition of nuclear energy in particular illustrates the political strength of German emphasis on interconnectedness, in multiple senses beyond the previously discussed environmental-economic linkage. Strong anti-nuclear sentiment in Germany dates back decades. In the 1970s and early 1980s, local activist movements sprang up to oppose the construction of nuclear power plants on the basis of concerns about pollution of beloved local landscapes like the Saxony wine country. These movements occurred alongside a spirit of grassroots opposition to a view of the military, the nuclear industry, and a too-powerful state as noxious bedfellows.[90] In fact, the original use of the term“Energie-Wende” came in the title of a pamphlet imagining “Growth and Prosperity without Oil and Uranium.”[91] In 1986, the Chernobyl disaster occurred in nearby Ukraine, increasing fears of nuclear energy and support for the anti-nuclear Green Party.[92] More recently, in 2000 the parliamentary coalition of the Greens and Social Democrats passed a law planning the gradual phase-out of nuclear energy.[93]However, Angela Merkel’s CDU reversed this decision when it swept into power in 2009, arguing that, as a zero-emissions energy source, nuclear power would be valuable for achieving the Energiewende’s emissions reductions targets as a “bridging technology” that would “[pave] the way for the age of renewable energy” by acting as a buffer against both high fossil fuel emissions and high renewables costs.[94] Thus there were two schools of thought: one Green, activist, and anti-nuclear, in favor of nuclear phase-out for the purposes of environmental friendliness and more localized energy production, the other in favor of nuclear energy with the an established and pragmatic consideration of the costs of the Energiewende , and pro-nuclear, at least for the near future. Then, in 2011, the Fukushima Daiichi nuclear disaster hit Japan. Days afterward, Angela Merkel gave a speech announcing that Germany would be immediately closing eight nuclear plants and would shutter the rest by 2022. Given that roughly 30% of German electricity was nuclear-powered at the start of the millennium,[95] and that nuclear energy had been reinvigorated by Merkel’s initial rise, such rapid closure represented a sudden and radical shift. On its face, such a strong German reaction to a Japanese disaster thousands of miles away seems surprising. Fundamentally, however, this German response to Fukushima was about an imagination of international interconnectedness, the reawakened ability of the population and government to imagine a similar disaster happening in Germany. As Merkel put it, “In Fukushima we have to take note that even in a high-tech country like Japan”—and thus a country like Germany—“the risks of nuclear energy cannot be controlled safely.”[96] Ironically, the factors to blame for Fukushima, which were a magnitude 9.0 earthquake at sea and a resultant tsunami crashing into nuclear plants on the shore of the open ocean, are not comparable risk factors for Germany, something Merkel even acknowledged.[97] But that was not the point, nor was it the point that Germany produced far less nuclear energy than some other advanced high-tech nations, like France and the US, which did not move to shutter their plants after Fukushima. The point was that Germans viewed their own destiny as remarkably bound up with the rest of the world’s, to the extent that a nuclear catastrophe in east Asia meant a whole nation’s nuclear supply in west-central Europe must be shut off. This rapid phase-out of a well-established, zero-emissions fuel source makes achieving the near-term emissions cuts targets of the Energiewende difficult, and doing so cost-effectively even more so.[98] But, at least as of 2015, opposition to nuclear energy remained high, with one poll showing 81% of Germans still in outright opposition to it.[99] Germany’s environmental-political imagination thus has its headstrong elements. That the nuclear phase-out is discussed as central to the Energiewende even though the phase-out makes the central Energiewende goal of fast, hefty emissions cuts much more difficult indicates that a larger integrative vision of how Germany should relate to its neighbors and to the environment drives both denuclearization and decarbonization. Coal, another energy source with a potent imaginative valence of landscape and environment in Germany, was also discussed at the coining of the term Energiewende in the early 1980s. However, unlike nuclear energy, the use of coal was celebrated rather than attacked. Since coal is a particularly “dirty” fuel, in that it emits more CO2 per unit of heat energy produced than other common fossil fuels,[100] such celebration may seem puzzling now, in the context of an Energiewende focused on reducing emissions. However, at the time, the goal of reduced emissions was less clarified, and instead coal was promoted because of its particularly German flavor. The use of heimische Kohle, or “domestic coal,” in place of oil was promoted, where heimische is a version of “domestic” that carries particular warm connotations of the German homeland. Germany has long gotten, and still gets, a huge proportion of its electric power from its vast coal reserves. It remains the world’s largest producer of lignite, a particularly inefficient and dirty form of coal.[101] But, unlike in the US, where the current government has dubiously pitched its replacement for the CPP as a savior for the coal industry, despite American coal’s uneconomically high cost relative to natural gas,[102] Germany has shown itself to be willing to move away from coal despite its historic connotations, its current potential utility in an energy transition complicated by the nuclear phase-out, and its home sourcing in a nation largely dependent on Russia for other fossil fuels. But the emissions reductions logic is clear: as the country’s 2050 Climate Action Plan states, “It will only be possible to meet the climate targets if coal-fired electricity production is gradually reduced.”[103] Accordingly, the country has formed an executive commission to oversee the phase-out of coal, and to ensure it is done in an inclusive way that will allow for a transition for its former workers and regions.[104] What explains this willingness to leave coal behind? I contend that, imaginatively, this readiness stems from an inward-facing sense of continuity and collectivism that complements the outward-facing form that motivated the nuclear phase-out decision after Fukushima. Unlike in the US, where coal is associated with one specific, romanticized landscape and culture over any other, in Germany heimische Kohle is not romanticized to the same extent. This is not to say the German coal industry has not battled the Energiewende, but it lacks the comparative political support of the US industry, and the resulting political mood is far different. Today, amid the effort to forge a new, more modern national energy identity, the old ideal of self-reliance from national coal production has lost its sway as Germans generally prefer to see a modern country unified in the face of climate change, a collective pursuing a responsible Energiewende. They celebrate the connections between landscape and society other ways, like in the country’s fifteen recently established UNESCO biosphere reserves which celebrate a balanced relationship of nature and humankind, and its many nature parks that preserve cultural, historical, and environmental sites together.[105] Germans have become quite confident on this issue: as Rainer Baake, a deputy minister of the BMWi, said bluntly in an interview with The New York Times when asked about high energy costs, “The energy transformation in Germany will be carried out by two main sources—those are wind and solar.”[106] B3. Leadership and Agency Leadership on the energy transition in Germany has long had a public face with deep experience on environmental issues: As Germany’s minister for the environment, Angela Merkel (sometimes called the “Climate Chancellor”)[107] presided over the first-ever UN conference on climate change, held in Berlin in 1994.[108] However, that Germany happened to elect an experienced former environmental minister as chancellor for the best part of the century’s first two decades is far from the whole story of the idea of leadership in the Energiewende. This section more deeply examine the components of leadership and agency in Germany’s environmental-political imagination: who it sees as responsible for taking action, what latitude leading agents have to change the course of existing initiatives, the nature of Germany’s participation on environmental issues in the international sphere, and the values that implicitly drive these understandings. It argues that a collectivist view of leadership focused on reciprocity and persistence prevails, in which each sector of German society (particularly individual citizens) is both empowered and expected to take action that furthers the Energiewende. The federal government is respected in its role as overseer of the Energiewende, but is expected to provide a fair deal from which all will benefit as a result. Internationally, Germany imagines itself as an environmental first mover that leads by example, its internal collective action a display of good-faith responsibility that ought to spur trust and reciprocity in the larger collective of nations. As in the United States, an important portion of Germany’s direction on climate and energy policy comes from the top. Chancellor Merkel has acquired a reputation as a forceful climate hawk, and, as much of this essay’s sourcing thus far has shown, hierarchical federal ministries set a great deal of Energiewende policy. But the way figures at the top discuss the action of the Energiewende makes clear that they conceive of it as necessarily a collective endeavor. Merkel, when announcing Germany’s retreat from nuclear energy, put it this way: “All of us, government and opposition, federal, state and local governments, society as a whole, every single one of us, all of us, if we do it properly, can combine ethical responsibility with economic success in this future project. This is our shared responsibility.”[109] Dr. Barbara Hendricks, then head of the BMU, wrote in her foreword to the 2020 Climate Action Programme that “All of us—all areas of industry and all individuals—have to step up to the plate.”[110] One way this collective spirit manifests is in the federalist relationship between the central government and the Länder, the German states. Whereas the CPP’s direction of each state to develop its own scheme for CO2 emissions reductions set off near-immediate battles in court about whether this fragmented approach constituted “bread-and-butter federalism” or gross federal overreach, the German chancellor and minister for energy and economic affairs meet twice yearly with the heads of all of the sixteen Länder to discuss Energiewende policy implementation and enjoy a close and generally functional, if not frictionless, relationship.[112] A rhetorical approach framing reciprocal collective participation as necessary for a successful Energiewende prevails especially strongly with respect to individual Germans. As one BMU report puts it, “Particularly here [in the Energiewende ] it is therefore important to create opportunities for the public to get involved and to support people in becoming aware of their scope for action...Climate action depends far more than any other policy area on the active involvement of as many people as possible.”[113] The government says that rather than asking individuals to sacrifice their own time and resources to reduce emissions, it will provide opportunities for citizen participation such that they themselves benefit.[114] Furthermore, the government has pledged to cut its own emissions to demonstrate its own responsibility and commitment to the cause.[115] Its statements of support for a ground-up Energiewende have, so far, been more than just so much grassroots talk: a cornerstone incentive of the push for emissions cuts has been the Renewable Energy Sources Act’s high federally subsidized prices, guaranteed for renewable energy sold to the grid by small-scale producers like individuals, households, and local co-ops.[116] Early in the century, the government promoted the adoption of small-scale photovoltaic (PV) solar installations with the so-called “100,000 Roofs” initiative, which provided government loans for people to buy rooftop solar systems. Germans have responded by engaging: by 2003, the program was successfully completed,[117] and by the end of 2017 there were 1.6 million PV installations nationwide,[118] with over 40% of total renewable capacity owned by citizens.[119] Much of this subsidizing has aided rural areas in particular, with farmers coming to own a greatly disproportionate percentage of PV installations and the generally conservative farmers’ association pushing the CDU to greater support of the Energiewende .[120] The mere thought of today’s rural, conservative Americans strongly supporting federal climate change policy illustrates both how vast the gulf is between Germany and the US on this issue and how powerful subsidies can be. For the most part, then, the German population does not aid its country’s climate policy as a sacrifice: it does so while gaining generous federally-designed benefits. But this profitability is part of the nation’s imagination of climate change as an integrated social-environmental problem that offers the opportunity to progress and modernize. The Energiewende is not fully democratic, per se, since the executive branch of the federal government from the beginning has played a strong role in setting its policies, but it has become truly collective in its implementation and its expansion of renewable energy enjoys 95% popular support.[121] Thus, in its rhetoric and action, Germany has to a significant extent successfully cast climate change not merely as an international political issue but as a collective German one, and as an opportunity to be addressed by the fulfillment of a social contract. Everyone must do their part, and accordingly, the benefits will be reaped by all. Unlike the autocratic “picking [of] winners and losers”[122] which the CPP was imagined to be by many in the US, the Energiewende is an “an investment in our own future.”[123] The understanding of this investment transcends the merely financial. For instance, the environment ministry stresses the need not just for technical research and development, but social and cultural research to increase understanding of “how people perceive climate change, what consequences it has for their lives, and...how all sections of the population can be included and social acceptance fostered.”[124] This sort of holistic environmental-political idea—linking often-separated human categories like “social,” “cultural,” and “economic” into a continuous whole addressing the state of the public under the banner of the issue of climate change—is, as we have seen, quintessentially modern German. If the Energiewende is supposed to be an endeavor which involves all sectors of society and is positively viewed by both the government and the public—the first and third of Hegel’s three spheres of consciousness in ethical life[125]—where does that leave German businesses, the key element in Hegel’s second sphere of civil society? How do economic actors understand this initiative that has cost so much? For one, the high level of popular support, combined with consistent governmental action, guarantees that German businesses—though they might not be automatically inclined to accommodate the demands of the Energiewende—have little choice but to make the best of it and adapt, as they are squeezed from above and below. This is particularly true of energy companies: as one former utilities executive put it, the Energiewende is “an irreversible process now.”[126] The country’s two largest power companies have both in recent years split in two, with one company emerging dedicated to traditional fuels and one to renewables.[127] Germany’s environmental-political imagination as realized in the Energiewende is thus not a utopian one, where achievement of the large social transition demanded by sharp emissions reductions arises from simple good will and is painless for all. However, given the demanding goal, what is required is clear: as the 2020 climate plan put it, “The energy industry is the sector with the highest greenhouse gas emissions and the greatest technical and economic potential for reduction.”[128] But while certain big businesses may not be happy, others are, as smaller companies dedicated to the production, installation, equipment, and maintenance of renewable energy technology have sprung up and the Energiewende has gained the support of industry groups like the German Confederation of Small and Medium-Sized Enterprises.[129] Plus, the collectivist temperament of the Energiewende extends to the hurt businesses: The government has pledged to work, including at EU level, to create job opportunities in regions most affected by the switch to renewables.[130] The dominant German conception of political leadership on environment outside its own borders is close to the imagination just described inside them. The federal government claims and demonstrates responsible leadership by example, acknowledging its interdependence with other nations without which a major dent cannot be made in international environmental issues like climate change, then expects them to follow suit just as it expects its own citizens and private enterprises to contribute to the Energiewende . This ideal of leadership, as read through Germany’s public statements and actions, is recognizable on both the European stage and the global stage. At the European level, Germany casts itself as a proudly trustworthy friend acting in solidarity for the larger collective European cause of which it is a part, willing to take on heavy burdens to encourage action by others. In the BMU’s words, “Germany’s climate policy is embedded in European and international agreements and legal obligations. Germany has always been a reliable partner in international and European climate policy.”[131] Since the early 2000s, it has shown leadership multiple significant times in the EU. First, following the publication of the Stern Report on the Economics of Climate Change in 2006, which argued that the worst effects of climate change could still be prevented with rapid and concerted action,[132] Germany led the EU during its Presidency of the Council of the European Union to its landmark 20-20-20 targets, which committed the EU as a whole to 20% reductions in CO2 emissions, 20% of power from renewable energy, and 20% increased energy efficiency levels by 2020.[133] Shortly after, in 2007, it passed major Energiewende legislation doubling these EU baseline commitments, pledging to cut its own CO2 emissions 40% by 2020.[134] For the most part, the EU has followed suit. As of August 2018, it is on track to meet its 20-20-20 commitment,[135] and several EU countries have now caught up to Germany in terms of emissions cuts and renewables production.[136] To exactly what extent these positive changes would have occurred without Germany taking leadership on the issue through the Energiewende is impossible to say, but its leadership has been immensely publicized and other nations have both followed in its footsteps and learned from its mistakes. Germany’s actions on the global stage in the 21st century have also evinced an imagination of itself as a responsible actor seeking to initiate a reciprocal exchange of actions rather than to gain credit for its own glory. The aforementioned 2007 decision to cut CO2 emissions 40% by 2020, the “Meseberg decision,” also immediately preceded the 2007 UN Climate Change Conference (COP13) in Bali. The government’s statement on the legislation proclaimed, By implementing the key elements adopted in Meseberg, Germany is demonstrating that climate protection can be implemented in all sectors in an economically viable way. With Meseberg we are moving away from the attitude in international climate policy of “you first” towards “this is what I’m doing, what about you?” This is the only way to break the deadlock in international negotiations.[137] The negotiations at COP13 in Bali ultimately achieved somewhat underwhelming results,[138] in part due to strong US objections to a proposal by developing countries. However, Germany’s 21st-century form of climate leadership by example has been durable and persistent despite international mediocrity: seven years after Bali, it put forth a new and more ambitious emissions reductions plan ahead of the 2015 UN Climate Change Conference (COP21) in Paris, which finally produced a (limited) international breakthrough in the form of the landmark Paris Agreement. Recycling their argument from the domestic context that emissions reductions and renewable power are crucial for economic modernization, ahead of Paris, Germany wrote that “Germany can, and must, play a key role internationally and must demonstrate that taking climate action in an industrialised country does work and, in fact, is crucial for any economy that wants to be competitive in the 21st century.”[139] While climate change is today’s signal international environmental issue, it is not the case that Germany’s sharp international environmental-political desire for responsible, reciprocal action is limited to climate and energy. There is a broader environmental conceptual connectivity, a common language for understanding environmental issues that must be politically approached, at work. For instance, in the context of biodiversity preservation, one of the UN Sustainable Development Goals,[140] a prominent German environmental NGO argued, “only if we in Germany take the lead and preserve...habitats from destruction, will we also be able to expect such conservation ideas to take root in poorer countries.”[141] A likely important factor contributing to this keen perception of international interdependence and leadership on environmental issues in Germany is its position in the center of Europe, caught as the most important nation in a terrestrial geographic web of dense population, commerce, borders, and laws. This position plays a part in both cross-border environmental issues that Germany must aid in solving, and issues of energy dependence: Germany depends on nearby, oil-rich, unfriendly Russia for 40% of its oil imports[142] and a significant quantity of natural gas to boot, a position that increasing its supply of renewables through the Energiewende aims to help it escape. The last feature of leadership and agency as understood in the modern continuous, collectivist German environmental-political imagination that I shall discuss here is its leaders’ respect for the temporal continuity of policy. This is well exemplified in the logical coherence of Energiewende policy since the turn of the millennium. Successive German central governments, for the most part, do not feel empowered or motivated to craft a climate and energy policy that is entirely their own. Instead, they adjust old policies and craft innovative ones atop an established structure that keeps the original fundamental goals intact, bespeaking a respect for prior action and an effective norm that holds it unacceptable to simply throw out the work of previous governments and attempt to start over. This pattern is a temporal corollary to the emphasis on social solidarity and collective action discussed so far that characterizes German environmental leadership. This persistent, collective gradualism is visible in the official discourse of the Energiewende : most laws, policy announcements, and statements by political leaders include provisions for frequent recalibration of the policies designed to cut emissions and increase renewables use.[143] For instance, the government in 2007 assured people at the outset of its doubling of emissions cuts targets that, in the event of ineffectiveness or cost-inefficiency in the design of the policy, its mechanisms would be redesigned.[144] Such assurances are often accompanied by exhortatory language about the value of determination and staying the course. For instance, from the minister of the BMU’s foreword to the 2020 Climate Action Programme: “Germanyʼs Energiewende , or energy transition, is an encouraging example...despite all the challenges its details pose. We intend to continue down this route—with everyone on board, including each individual sector of the economy.”[145] As in the case of its domestic inclusion and international leadership, this ambitious talk has generally in the Energiewende been convincingly backed by action. The sheer volume of legislation passed each year to update and fine-tune the Energiewende , usually in the direction of greater policy ambition, is a testament to a deep-seated incrementalist perseverance. The repeated revisiting of the 2000 Renewable Energy Sources Act is a good example of this. New versions of the act have been passed five times since its original passage, in order to update its pricing mechanisms and the rates of its energy subsidies in light of new evidence and emissions reductions progress, but the core structure has remained in place.[146] This is undoubtedly thanks in part to the way it and other Energiewende policies have intentionally involved and benefited individual citizens, such that reversing it would be fatally unpopular, but updating it remains popularly accepted. This patience of the German environmental-imagination when it comes to leadership and effective action also guarantees that beneficial policy experiments are encouraged, and the government can learn from its mistakes. For instance, after a successful experimental cross-border wind energy auction with Denmark, Germany laid plans to expand its cross-border renewables connectivity within Europe.[147] Such experimentation and improvement within a broader continuity rarely occurs in a modern US environmental-political context defined largely by the desire of each administration to craft its own signature policies on key issues like energy. In the US, more typical than a rhetoric of adjustment, gradual improvement, and persistence are words like “repeal,” “rule unconstitutional,” and “replace.”[148] This pendulum effect on climate and energy policy in the US reflects an environment of partisan hostility, certainly, but also a vision of environmental politics as a zero-sum game played between individuated competing parties. Moreover, the German imagination of temporal continuity and gradual adjustment of laws dovetails with a conceptual continuity of environmental outcomes, which is the opposite of the American case. In contemporary Germany, the climate problem, along with environmental problems generally, tends not to be framed as a binary with either an outcome of glorious victory or devastating failure depending on which of competing policies is selected. Instead, a more realist, incremental perspective prevails: better environmental outcomes can be achieved on a spectrum of possible outcomes by improving the design and implementation of laws. As a BMU dossier explaining Germany’s climate policies put it, “Climate change cannot be reversed...Nevertheless, it is still possible to slow down climate change and limit its impacts on humans and the environment.”[149] Words like “fighting” climate change, rather than “solving” it or “defeating” it, are common.[150] Accordingly, Germany has not just emissions reductions plans, but an official strategy for adaptation to climate change.[151] The US, where action on climate change tends to be framed as either part of a once-and-for-all climate solution or a total failure, has no such plan. There is no place in American environmental-political rhetoric for a reasoned gradualism, even an urgent one: as Obama put it, ours is “the last generation”[152] that can do something about climate change, and that “doing something” is cast usually as “solving” climate change, or failing to do so.[153] Rather than climate change becoming progressively worse the less each generation acts to prevent it, in this imagination the generation of today becomes “the last generation” that can act, the glorious individual agent who either succeeds or fails. The desire in the US political imagination for glorious leadership by a particular individual or group is not limited to competing parties or economic interests, then, but extends over time: America particularizes the present. In Germany, by contrast, persistence, gradualism, and the principle of “fairness between generations”[154] deeply influences the German moral and political compass and produces an approach to policy better suited to the problem of CO2 emissions itself: needful of sustained cuts over time and productive of a problem that can get a bit worse when policy is a bit less effective. To conclude this section: in the German environmental-political imagination, climate change is an issue of collective responsibility on which Germany ought to lead in a persistent, patient, and reciprocal way, both domestically and internationally, with participation from the top to the bottom of society and benefit for all involved. Endnotes [1] Barack Obama, “Remarks Announcing the Environmental Protection Agency’s Clean Power Plan - DCPD-201500546” (Office of the Federal Register, National Archives and Records Administration, August 3, 2015), https://www.govinfo.gov/app/details/DCPD-201500546. https://www.govinfo.gov/app/details/DCPD-201500546 Obama. [2] Barbara Hendricks, Foreword, in “The German Government’s Climate Action Programme 2020 - Cabinet Decision of 3 December 2014” (Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMUB), December 3, 2014). [3] Jedediah Purdy, After Nature: A Politics for the Anthropocene (Cambridge, Massachusetts: Harvard University Press, 2015), 3. [4] See, e.g., Suzanne Moore, “Angela Merkel Shows How the Leader of the Free World Should Act | Suzanne Moore,” The Guardian , May 29, 2017, sec. Opinion, https://www.theguardian.com/commentisfree/2017/may/29/angela-merkel-leader-free-world-donald-trump . [5] Purdy, After Nature , 6. [7] For a general global analysis, see Douglas Holtz-Eakin & Thomas M. Selden, Douglas Holtz-Eakin and Thomas M. Selden, “Stoking the Fires? CO2 Emissions and Economic Growth,” Journal of Public Economics 57 , no. 1 (May 1995): 85-101. For an early economic analysis linking CO2, growth, and climate, see William D. Nordhaus, William D. Nordhaus, “Economic Growth and Climate: The Carbon Dioxide Problem,” The American Economic Review , no. 1 (1977): 341. For an examination of several industrialized nations, including the US and Germany, that provides empirical evidence against the theoretical notion in environmental economics that beyond a certain level of development, emissions and growth vary inversely, see S.M. de Bruyn et al, Economic Growth and Emissions: Reconsidering the Empirical Basis of Environmental Kuznets Curves , 25 Ecological Econ. 161-175 (1998). For an analysis focused on China, see S.S. Wang et al., “CO2 Emissions, Energy Consumption and Economic Growth in China: A Panel Data Analysis,” Energy Policy 39 (September 1, 2011): 4870–75, https://doi.org/10.1016/j.enpol.2011.06.032 . [8] “GDP (Current US$) | Data” (World Bank, 2018), https://data.worldbank.org/indicator/NY.GDP.MKTP. CD?year_high_desc=true. [9] “GDP per Capita, PPP (Current International $) | Data” (World Bank, 2018), https://data.worldbank.org/ indicator/NY.GDP.PCAP.PP.CD?end=2015&start=1960&year_high_desc=true. [10] “Each Country’s Share of CO2 Emissions,” Union of Concerned Scientists, October 11, 2018, https://www . ucsusa.org/global-warming/science-and-impacts/science/each-countrys-share-of-co2.html. [11] “The World Factbook,” Central Intelligence Agency, 2016, https://www.cia.gov/library/publications/theworld-factbook/. [12] United States Environmental Protection Agency, “Our Mission and What We Do,” Overviews and Factsheets, US EPA, January 29, 2013, https://www.epa.gov/aboutepa/our-mission-and-what-we-do; “About Us,” Umweltbundesamt, September 6, 2013, http://www.umweltbundesamt.de/en/the-uba/about-us. For a lay overview of the EPA’s history and functions, see Robinson Meyer, “How the U.S. Protects the Environment, From Nixon to Trump,” The Atlantic, March 29, 2017, https://www.theatlantic.com/science/archive/2017/03/how-the-epa-andus-environmental-law-works-a-civics-guide-pruitt-trump/521001/. [13] Massachusetts v. Environmental Protection Agency, No. 05–1120 (Roberts Court April 2, 2007). [14] “EU Emissions Trading System (EU ETS),” Climate Action - European Commission, accessed January 2, 2019, https://ec.europa.eu/clima/policies/ets_en. [15] Meyer, “How the U.S. Protects the Environment.” [16] “The Clean Power Plan: EPA Interprets the Clean Air Act to Allow Regulation of Carbon Dioxide Emissions from Existing Power Plants.,” Harvard Law Review 1152 129, no. 4 (February 2016), https://harvardlawreview. org/2016/02/the-clean-power-plan/. [17] Environmental Protection Agency, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units | 80 FR 64661” (Federal Register, December 22, 2015), https://www. federalregister.gov/documents/2015/10/23/2015-22842/carbon-pollution-emission-guidelines-for-existingstationary-sources-electric-utility-generating. [18] United States Environmental Protection Agency, “Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2016,” Reports and Assessments, US EPA, January 30, 2018, https://www.epa.gov/ghgemissions/inventoryus-greenhouse-gas-emissions-and-sinks-1990-2016. [19] Barack Obama, “Remarks Announcing the Environmental Protection Agency’s Clean Power Plan.” [20] Robinson Meyer and Matt Ford, “A Major Blow to Obama’s Climate-Change Plan,” The Atlantic, February 9, 2016, https://www.theatlantic.com/politics/archive/2016/02/supreme-court-clean-power/462093/. [21] 40 C.F.R. §60. [22] “Clean Power Plan / Carbon Pollution Emission Guidelines - Environmental & Energy Law Program,” Harvard Law School, September 27, 2017, https://eelp.law.harvard.edu/2017/09/clean-power-plan-carbonpollution-emission-guidelines/. [23] United States Environmental Protection Agency, “FACT SHEET: Clean Power Plan Overview,” Overviews and Factsheets, accessed January 3, 2019, fact-sheet-clean-power-plan-overview.html. [24] Robert Rapier, “Yes, The U.S. Leads All Countries In Reducing Carbon Emissions,” Forbes, accessed January 3, 2019, [25] US EPA, “Carbon Pollution Emission Guidelines,” ES-6. [26] United States Environmental Protection Agency, “Sources of Greenhouse Gas Emissions,” Overviews and Factsheets, US EPA, December 29, 2015, https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions. [27] See, e.g., Hiroko Tabuchi and Henry Fountain, “Bucking Trump, These Cities, States and Companies Commit to Paris Accord,” The New York Times, January 20, 2018, sec. Climate, https://www.nytimes.com/2017/06/01/climate/american-cities-climate-standards.html. [28] Hardy Graupner, “What Exactly Is Germany’s ‘Energiewende’?” DW.COM, January 22, 2013, https://www.dw.com/en/what-exactly-is-germanys-energiewende/a-16540762. [29] “Sunny, Windy, Costly and Dirty,” The Economist, January 18, 2014, https://www.economist.com/europe/2014/01/18/sunny-windy-costly-and-dirty. [30] “Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz EEG),” International Energy Agency, 2000, https://www.iea.org/policiesandmeasures/pams/germany/name-21702-en.php. [31] BMWi - Federal Ministry for Economics Affairs and Energy, “Renewable Energy,” 2018, https://www.bmwi.de/Redaktion/EN/Dossier/renewable-energy.html. [32] See generally Federal Ministry for Environment, Nature Conservation, and Nuclear Safety (BMU), “The Integrated Energy and Climate Programme of the German Government,” 2007. [33] See generally Federal Ministry of Economics and Technology and Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, “Energy Concept for an Environmentally Sound, Reliable and Affordable Energy Supply,” September 28, 2010. [34] See generally “The German Government’s Climate Action Programme 2020 - Cabinet Decision of 3 December 2014” BMU, December 3, 2014; BMU, “Climate Action Plan 2050 – Germany’s Long-Term Emission Development Strategy,” 2016, https://www.bmu.de/en/topics/climate-energy/climate/national-climate-policy/greenhouse-gas-neutral-germany-2050/. [35] Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, “The Federal Government’s Energy Concept of 2010 and the Transformation of the Energy System of 2011,” 2011. [36] Jeffrey Ball, “Germany’s High-Priced Energy Revolution,” Fortune, March 14, 2017, http://fortune.com/2017/03/14/germany-renewable-clean-energy-solar/. [37] Kerstine Appunn, “The History behind Germany’s Nuclear Phase-Out,” Clean Energy Wire, January 2, 2018, https://www.cleanenergywire.org/factsheets/history-behind-germanys-nuclear-phase-out. [38] See e.g., Sören Amelang, “Germany on Track to Widely Miss 2020 Climate Target – Government,” Clean Energy Wire, June 13, 2018, https://www.cleanenergywire.org/news/germany-track-widely-miss-2020-climatetarget-government. [39] Eurostat, “Greenhouse Gas Emission Statistics - Emission Inventories,” June 2018, https://ec.europa.eu/eurostat/statistics-explained/index.php/Greenhouse_gas_emission_statistics_-_emission_inventories. [40] BMWi, “Renewable Energy,” 2018. [50] See, e.g., Environmental Protection Agency, “Electric Utility Generating Units: Repealing the Clean Power Plan: Proposal,” Policies and Guidance, US EPA, October 4, 2017, https://www.epa.gov/stationary-sourcesair-pollution/electric-utility-generating-units-repealing-clean-power-plan-0; Robinson Meyer, “How Obama Could Lose His Big Climate Case,” The Atlantic, September 29, 2016, https://www.theatlantic.com/science/archive/2016/09/obama-clean-power-plan-dc-circuit-legal/502115/. [51] OAR US EPA, “Clean Power Plan Final Rule – Regulatory Impact Analysis,” Reports and Assessments, October 23, 2015, /cleanpowerplan/clean-power-plan-final-rule-regulatory-impact-analysis, 3-23. [52] See, e.g., sections on ExxonMobil, Peabody Energy, and Southern Company in “Who’s Fighting the Clean Power Plan and EPA Action on Climate Change?” Union of Concerned Scientists, https://www.ucsusa.org/globalwarming/fightmisinformation/whos-fighting-clean-power-plan-and-epa-action-climate. [53] OAR US EPA, “FACT SHEET: Clean Power Plan By The Numbers,” Overviews and Factsheets, accessed January 3, 2019, fact-sheet-clean-power-plan-numbers.html. [54] See, e.g., Megan Brenan and Lydia Saad, “Global Warming Concern Steady Despite Some Partisan Shifts,” Gallup.com, March 28, 2018, https://news.gallup.com/poll/231530/global-warming-concern-steady-despitepartisan-shifts.aspx. [55] “EPW Republicans Send Letter to EPA in Support of Clean Power Plan Repeal,” U.S. Senate Committee on Environment and Public Works, January 12, 2018, https://www.epw.senate.gov/public/index.cfm/2018/1/epwrepublicans-send-letter-to-epa-in. [56] Purdy, After Nature, 190. [57] US EPA, supra note 21. [58] Department of Energy, “2017 U.S. Energy and Employment Report,” January 2017, 29. [59] DOE, “U.S. Energy and Employment Report,” 21. [60] For a theoretical overview of environmental justice and its critical discussion of race, see David Schlosberg, “Theorising Environmental Justice: The Expanding Sphere of a Discourse,” Environmental Politics 22, no. 1 (February 1, 2013): 37–55, https://doi.org/10.1080/09644016.2013.755387); For information about the high proportion of black Americans living near a coal-fired power plant, see “Environmental Racism in America: An Overview of the Environmental Justice Movement and the Role of Race in Environmental Policies,” Goldman Environmental Foundation, June 24, 2015, https://www.goldmanprize.org/blog/environmental-racism-inamerica-an-overview-of-the-environmental-justice-movement-and-the-role-of-race-in-environmental-policies/; By contrast, for statistics showing employment in the coal industry to be disproportionately white, see United States Department of Labor Bureau of Labor Statistics, “Employed Persons by Detailed Industry, Sex, Race, and Hispanic or Latino Ethnicity,” 2018, https://www.bls.gov/cps/cpsaat18.htm. [61] Purdy, After Nature, 30. [62] International Energy Agency, “Energy Imports, Net (% of Energy Use) | Data” (The World Bank, 2015), https://data.worldbank.org/indicator/EG.IMP.CONS.ZS?locations=US&year_high_desc=false. [63] Nicole Lewis, “Fact Checker: EPA Administrator Scott Pruitt’s Claim That the U.S. Is ‘Leading the World’ in ‘C02 Footprint’ Reductions,” The Washington Post, October 23, 2017, https://www.washingtonpost.com/news/fact-checker/wp/2017/10/23/epa-administrator-scott-pruitts-claim-the-u-s-is-leading-the-world-in-c02-footprintreductions/?utm_term=.57dfb8ccf34b. [64] Jan Ivar Korsbakken, Robbie Andrew, and Glen Peters, “Guest Post: China’s CO2 Emissions Grew Less than Expected in 2017,” Carbon Brief, March 8, 2018, https://www.carbonbrief.org/guest-post-chinas-co2-emissionsgrew-less-expected-2017. [65] Benjamin Storrow, “Trump’s ‘Affordable Clean Energy’ Plan Won’t Save Coal,” Scientific American, August 21, 2018, https://www.scientificamerican.com/article/trumps-affordable-clean-energy-plan-wont-save-coal/. [66] Obama, “Remarks Announcing the Environmental Protection Agency’s Clean Power Plan." [67] The European Commission, “EU Emissions Trading System (EU ETS).” [68] It seems notable here that for the entire period between Obama’s direction of the EPA to craft the CPP in 2013 and his announcement of the final rule in 2015, his approval rating stayed beneath 50%; see Gallup, “Presidential Approval Ratings -- Barack Obama,” Gallup.com, accessed January 4, 2019, https://news.gallup.com/poll/116479/Barack-Obama-Presidential-Job-Approval.aspx. [69] The White House Office of the Press Secretary, “Presidential Memorandum -- Power Sector Carbon Pollution Standards,” whitehouse.gov, June 25, 2013, https://obamawhitehouse.archives.gov/the-press-office/2013/06/25/presidential-memorandum-power-sector-carbon-pollution-standards. [70] See e.g., Naomi Klein, This Changes Everything: Capitalism vs. the Climate (New York: Simon & Schuster, 2014). [71] Purdy, After Nature, 34. [73] BMU, supra note 15, at 2. [74] Id., at 1. [75] See, e.g., Purdy, After Nature, 24. [76] BMU and BMWi, “Energy Concept for an Environmentally Sound, Reliable and Affordable Energy Supply,” 4. [77] BMU and BMWi, “Energy Concept for an Environmentally Sound, Reliable and Affordable Energy Supply,” 5. [78] BMU, “The German Government’s Climate Action Programme 2020 - 2014” 18. [79] “The German Federal Government,” deutschland.de, January 23, 2018, https://www.deutschland.de/en/ topic/politics/the-german-federal-government. [80] “Basic Law for the Federal Republic of Germany - Article 20a [Protection of Natural Foundations of Life and Animals]” (Federal Ministry of Justice and Consumer Protection and Federal Office of Justice), accessed January 4, 2019, https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0119. [81] “The German Environmental Constitutional Law,” Umweltbundesamt, January 29, 2016, http://www.umweltbundesamt.de/en/the-german-environmental-constitutional-law. [82] Monika Neumann, “The Environmental Law System of the Federal Republic of Germany,” Annual Survey of International & Comparative Law 3, no. 1 (1996): 69–110. [83] Jonathan Cannon, Environment in the Balance (Harvard University Press, 2015), http://www.hup.harvard.edu/catalog.php?isbn=9780674736788. [84] Arlan Gerald Wine, “Enforcement Controversy Under the Clean Air Act: State Sovereignty and the Commerce Clause,” Transportation Law Journal 8 (1976): 383–400. [85] See, e.g., Massachusetts v. Environmental Protection Agency, No. 05–1120; wherein the Bush-era EPA opposed regulation of CO2 emissions. [86] Konrad Adenauer Stiftung, “History of Environmental Policy in Germany: CDU Perspectives 1958–2015,”n.d.,https://www.kas.de/c/document_library/get_file?uuid=57153b6c-1ac9-6dd4-4048-b7e8732ba709&groupId=252038. [87] Konrad Adenauer Stiftung, “History of Environmental Policy in Germany,” 2 [88] Konrad Adenauer Stiftung, “History of Environmental Policy in Germany,” 22. [89] For discussion of coal, see BMU, “Climate Action Plan 2050 – Germany’s Long-Term Emission Development Strategy”; for discussion of the abolition of nuclear energy see “German Chancellor Merkel on Energy Nuclear Policy, Jun 9 2011 | Video | C-SPAN.Org” (C-SPAN 3, June 9, 2011), https://www.c-span.org/video/?300059-1/german-chancellor-merkel-energy-nuclear-policy. [90] Paul Hockenos, “The History of the Energiewende,” Clean Energy Wire, June 12, 2015, https://www.cleanenergywire.org/dossiers/history-energiewende. [91] Hockenos, “The History of the Energiewende.” [92] Hockenos, “The History of the Energiewende.” [93] Ball, “Germany’s High-Priced Energy Revolution.” [94] BMU and BMWi, “Energy Concept for an Environmentally Sound, Reliable and Affordable Energy Supply,” 15. [95] Appunn, “The History behind Germany’s Nuclear Phase-Out." [96] “German Chancellor Merkel on Energy Nuclear Policy, Jun 9 2011 | Video | C-SPAN.Org.” [97] “German Chancellor Merkel on Energy Nuclear Policy, Jun 9 2011 | Video | C-SPAN.Org.” [98] See, e.g., Kenneth Bruninx et al., “Impact of the German Nuclear Phase-out on Europe’s Electricity Generation—A Comprehensive Study,” Energy Policy 60 (September 1, 2013): 251–61, https://doi.org/10.1016/j.enpol.2013.05.026; Hardy Graupner, “What Exactly Is Germany’s ‘Energiewende’?,” DW.COM, January 22, 2013, https://www.dw.com/en/what-exactly-is-germanys-energiewende/a-16540762. [99] Poll by Emnid, cited in “4 Jahre Nach Fukushima: Große Mehrheit Für Energiewende - Politik Inland - Bild. De,” Bild, March 14, 2015, https://www.bild.de/politik/inland/atomausstieg/4-jahre-nach-fukushima-grossemehrheit-fuer-energiewende-40148648.bild.html. [100] B.D. Hong and E.R. Slatick, “Emissions Factors for Coal,” Quarterly Coal Report January-April 1994, 1994, 1–8. [101] Kerstine Appunn, “Coal in Germany,” Clean Energy Wire, October 29, 2014, https://www.cleanenergywire.org/factsheets/coal-germany. [102] Jessica Wentz, “6 Important Points About the ‘Affordable Clean Energy Rule,’” State of the Planet | Earth Institute | Sabin Center for Climate Change Law (blog), August 22, 2018, https://blogs.ei.columbia.edu/2018/08/22/affordable-clean-energy-rule/. [103] BMU, supra note 34, at 35. [104] Benjamin Wehrmann, “Germany’s Coal Exit Commission,” Clean Energy Wire, May 31, 2018, https://www.cleanenergywire.org/factsheets/germanys-coal-exit-commission. [105] “Nature Protection and Biodiversity - National Responses (Germany),” SOER 2010 Common environmental theme (Deprecated), European Environment Agency, accessed January 5, 2019, https://www.eea.europa.eu/soer/countries/de/nature-protection-and-biodiversity-national. [106] Melissa Eddy, “German Energy Push Runs Into Problems,” The New York Times, December 20, 2017, sec. Business, https://www.nytimes.com/2014/03/20/business/energy-environment/german-energy-push-runsinto-problems.html. [107] Ellen Thalman and Julian Wettengel, “The Story of ‘Climate Chancellor’ Angela Merkel,” Clean Energy Wire, November 26, 2015, https://www.cleanenergywire.org/factsheets/making-climate-chancellor-angelamerkel. [108] Konrad Adenauer Stiftung, “History of Environmental Policy in Germany,” 30. [109] “German Chancellor Merkel on Energy Nuclear Policy, Jun 9 2011 | Video | C-SPAN.Org.” [110] BMU, “The German Government’s Climate Action Programme 2020,” 6. [111] See Meyer, “How Obama Could Lose His Big Climate Case.” [112] BMWi, Monitoring and Steering the Energy Transition (2018), https://www.bmwi.de/Redaktion/EN/Dossier/energy-transition.html. [113] BMU, supra note 34, at 12. [114] See, e.g., BMU, “The Integrated Energy and Climate Programme,” 2; 13. [115] BMU, “The Integrated Energy and Climate Programme,” 63. [116] Alexander Franke and Energiewende Team, “How Winning over Rural Constituents Changed the Political Discussions on Renewables in Germany,” Energy Transition (blog), November 18, 2014, https://energytransition.org/2014/11/german-fit-helped-making-energiewende-non-partisan/. [117] Gerhard Stryi-Hipp, “THE EFFECTS OF THE GERMAN RENEWABLE ENERGY SOURCES ACT (EEG) ON MARKET, TECHNICAL AND INDUSTRIAL DEVELOPMENT,” 2004, https://doi.org/10.13140/2.1.1444.6404, 1. [118] BMWi, “Renewable Energy,” 2018. [119] Craig Morris, “Share of German Citizen Renewable Energy Shrinking,” Energy Transition (blog), February 7, 2018, https://energytransition.org/2018/02/share-of-german-citizen-renewable-energy-shrinking/. [120] Franke et al, “How Winning over Rural Constituents Changed the Political Discussions on Renewables.” [121] David Meyer, “95% of Germans Support Green Energy Subsidies Despite Their High Price,” Fortune, August 8, 2017, http://fortune.com/2017/08/08/germans-renewable-energy-energiewende-subsidies/. Just as remarkably, 56% of Germans said their average annual electricity bill surcharge of around 240 euros was either reasonable or too low. [122] Former EPA Administrator Scott Pruitt, quoted in “Scott Pruitt Signs a Measure to Repeal the Clean Power Plan,” The Economist, October 10, 2017, https://www.economist.com/democracy-in-america/2017/10/10/scottpruitt-signs-a-measure-to-repeal-the-clean-power-plan. [123] BMU supra note 29; see also, e.g., BMU, “The Integrated Energy and Climate Programme,” 14: (“it is therefore...their own interest”). [124] BMU, “The Integrated Energy and Climate Programme,” 65. [125] Paul Redding, “Georg Wilhelm Friedrich Hegel,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Summer 2018 (Metaphysics Research Lab, Stanford University, 2018), https://plato.stanford.edu/archives/sum2018/entries/hegel/. [126] Thomas Birr, quoted in Ball, “Germany’s High-Priced Energy Revolution.” [127] Ball, “Germany’s High-Priced Energy Revolution.” [128] BMU, supra note 34, at 16. [129] Franke et al, “How Winning over Rural Constituents Changed the Political Discussions on Renewables”; for a more general discussion of the Energiewende and small- to medium-sized enterprises (SMEs), see “The German Government’s Climate Action Programme 2020,” BMU, 15. [130] “The Energy of the Future: Fourth ‘Energy Transition’ Monitoring Report – Summary” (The Federal Ministry for Economic Affairs and Energy (BMWi), November 2015), https://www.bmwi.de/Redaktion/EN/Publikationen/vierter-monitoring-bericht-energie-der-zukunft-kurzfassung.pdf?__blob=publicationFile&v=1. 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Does Social Media Strategy Help Politicians Stay in Power? Comparing the Cases of Modi and Bolsonaro Wendy Wang Author Aimee Zheng Kate Tobin Editors Introduction While social media was initially touted as a force for good, such as its use during the Arab Spring’s pro-democracy protests in 2011, recently, major platforms have faced criticism for failing to sufficiently combat political disinformation and election interference. After all, one of the major controversies during the 2016 American presidential elections was the revelation of Russian meddling attempts on social media. Therefore, this paper will investigate the dynamics between social media strategies and political success, while also examining its larger effects on public discourse, voters, and political communication. It seeks to understand how leaders employ the digital sphere to gain and remain in power, with a focus specifically on populist leaders in semi-democratic states, namely Narendra Modi in India and Jair Bolsonaro in Brazil. The relative similarity of the regimes in which Modi and Bolsonaro rose to power enables a more precise isolation of the factors that have contributed to their distinct political outcomes. This comparative analysis aims to offer insight into the evolution of social media's impact on politics, and its implications for the resilience of populist leaders in semi-democratic regimes. Analyzing Politicians’ Relationship with Mass Media in Semi-Democratic and Democratic Countries While social media platforms were originally touted as a potential force for positive political change, such as during the Arab Spring, when they were used to coordinate and mobilize citizens to protest against authoritarian regimes,his quickly shifted when non-democratic actors realized they could also utilize social media just as effectively as pro-democracy activists to sow discord. In the case of the Arab spring, governments tracked protestors online, including those overseas, and attempted to silence them through relational repression, or threatening to hurt their relatives at home. Governments also pass legislation under the pretense of making the internet “safer,” yet in reality, such measures are often utilized to silence dissent. For example, in 2020, Turkey passed a law that allegedly aimed to curb “immoral” content.this legislation, however, also granted the Turkish government the right to remove content from platforms, and allowed for the storage of Turkish users’ data within the country. In 2022, Turkish President Recep Tayyip Erdoğan went even further, passing disinformation legislation that punished those who spread news that was inaccurate with up to five years in prison. Right before the 2023 parliamentary and presidential elections, Erdoğan then forced X (formerly Twitter) to ban access to several local opposition public figures’ accounts. Even before the popularization of social media, politicians placed significant emphasis on cultivating their public image to maximize electability, and have had to adapt as new mediums that have arisen. Politicians who quickly adapt to new forms of media have always gained an advantage. One of the most famous examples of this is the 1960 Kennedy-Nixon presidential debate, which was the first televised debate between American presidential candidates. Reportedly, viewers of the debate believed Kennedy won, while radio listeners tended to believe that Nixon performed better – a phenomenon that scholars have since replicated in experiments. Thus, it is possible that Kennedy’s adeptness in harnessing this newfangled technology just as it became commonly used among the general electorate contributed to his electoral victory. Politicians in today’s current political climate have similarly adapted to new mediums – notably social media – to gain electoral advantages. During the 2016 presidential elections, Donald Trump’s campaign benefited significantly from utilizing the expertise and staff of technology firms. S This advantage stemmed from the active involvement of social media companies such as Facebook, Twitter, and Google which initially courted political campaigns by providing advice on leveraging their platforms for digital advertising. This assistance enabled Trump’s campaign to target key demographic groups, swing voters, and supporters online, likely mitigating the Trump campaign’s relative staffing disadvantage.. In contrast, Clinton’s more well-funded and staffed campaign meant that it crafted most of its ads in-house, and treated the technology companies more like vendors instead of consultants. Even without the help of tech companies, politicians are recognizing the importance of utilizing data to effectively target key voters on platforms. For example, in the UK, Vote Leave, which campaigned for the UK to leave the EU ahead of the 2016 Brexit referendum, utilized personal data to target specific demographics and test which narratives voters were the most responsive to. The utilization of citizens’ data to more accurately target them with political messaging has, however, attracted controversy. This public controversy that such microtargeting attracts is exemplified by the Cambridge Analytica scandal in 2018, which revealed that the company collected the information of over 50 million Facebook users without their consent through a Facebook app that misleadingly told users that their information would be used for academic purposes. That data was ultimately used by the Trump campaign to precisely target voters, although whether this method was truly effective at swaying voters is uncertain.,, Interestingly, Trump had significantly more engagement with his social media content, following the old adage of “all press is good press,” which allowed him to overcome his disadvantage in traditional campaigning techniques. In particular, his provocative tweets received significant organic coverage from mainstream media, which allowed him to spend less on traditional media advertising. Additionally, Trump’s combative approach to tweeting proved effective, as an analysis of tweets before the 2016 election found that tweets about Clinton tended to be unfavorable.furthermore, her most popular tweets primarily focused on criticizing Trump rather than promoting her own candidacy. This is potentially reflective of a larger bias among social media algorithms, which have found that negative content is more likely to go viral. Therefore, it is unsurprising that in the 2016 election, negative content gained the most traction, reflecting the importance of social media in allowing politicians to personalize their appeals to voters. In recent decades, politicians have increasingly personalized their media strategies, conducting campaigns that encompass both their political agenda and personal brand. Media coverage not only focuses on the politician's policies and leadership capabilities, but also on their private life. While this behind-the-scenes content is, in general, generally just as polished and curated as performances on the campaign trail, by claiming to give voters a peek into their private life and personality, this content seeks to make the candidate more relatable and endearing to voters. Consequently, Trump’s openness about his extreme views and his use of colloquial language added an air of authenticity to his social media content that enhanced his populist claim of being of the masses. Trump’s social media presence, in particular, thus underscores how the advent of social media has opened up new avenues and methods through which politicians cultivate authenticity in pursuit of electoral success. By removing barriers between politicians and voters, social media allows politicians to communicate more directly with the electorate in an intimate and personal manner. This communication feels even more intimate now that social media has become synonymous with authenticity. Moreover, social media platforms provide politicians with the opportunity to strategically showcase their personality. Trump, in choosing to disregard basic grammatical and spelling rules and post rambling tweets, employed indexical signs, or signals alluding to his persona, to cultivate an appearance of authenticity. These distinctive features of his social media content seem to indicate that his tweets are a truer reflection of his personality relative to other politicians (such as Hilary Clinton) who sign off their tweets with their initials. Trump’s success also highlights how populist leaders are particularly well-positioned to benefit from the digitalization of the public sphere and the growing forms of direct communication between politicians and voters. The establishment of closer bonds between politicians and their support base make it easier for anti-establishment populists’ to fuel distrust in mainstream media and present alternative versions of facts. Consequently, populist and authoritarian leaders utilize social media to directly appeal to the public, bypassing critical voices like investigative journalists, thereby facilitating the spread of misleading or false information, as demonstrated by Donald Trump. Background on Modi and Bolsonaro Modi has been India’s Prime Minister since 2014, when his party, the Hindu nationalist Bharatiya Janata Party (BJP) won a landslide majority in India’s parliament. He is currently serving his second term as prime minister, following the BJP’s success in the 2019 elections. As a boy, Modi joined the Hindu nationalist paramilitary organization ‘Rashtriya Swayamsevak Sangh’ (“National Volunteer Association,” or RSS), which heavily shaped his life and worldview. The RSS is a far-right Hindu nationalist group advocating for the establishment of a purely Hindu nation. Their vision leaves no room for India’s Muslim minority, leading to frequent accusations of inciting hatred towards Muslims. Modi dedicated almost 3 decades to organizing on behalf of the RSS, which is closely associated with the BJP. This ultimately played a significant role in propelling Modi to the forefront of the BJP’s electoral campaigns. He eventually became a BJP party spokesperson, establishing his public presence. He was subsequently appointed as the chief minister of Gujarat in 2001, during which time the state’s economy grew rapidly. India’s media landscape is fairly varied, as popular sources of news include everything from legacy publications such as The Times of India , to broadcasters such as NDTV, and BBC News, which tend to be relatively unbiased. Over 70 percent of Indian consumers get their news from their phones, and YouTube is a particular popular platform for accessing news. Notably, Indians are particularly interested in hyperlocal news, which they obtain through small, local publications and WhatsApp groups. That being said, India is one of the most dangerous places to be a journalist, and, in recent years, press freedom has declined as Modi and the BJP have increasingly attacked the freedoms of speech, judiciary, religion, and protest. Because of this, journalists often shy away from criticizing the government or reporting critically on the government out of fear of retribution.,, Jair Bolsonaro was the president of Brazil from 2019-2023, who after leaving the military, was elected to Rio de Janeiro’s city council, and then later represented the city in Brazil’s Chamber of Deputies. He gained notoriety for his extremely conservative social views, and numerous sexist, homophobic, and racist comments. He also exhibited nostalgia for the previous dictatorship, a sentiment that persisted throughout his campaign and presidency. In 2018, amid widespread discontent following simultaneous economic, political, and social crises due to major corruption scandals, Bolsonaro won the presidency. However, his presidency was plagued by numerous controversies, including his deforestation of the Amazon and most notably, his poor handling of the COVID-19 crisis. During the pandemic, he seemingly expressed indifference to the deaths of hundreds of thousands of Brazilians due to his lax COVID-19 policies, mocked those with severe cases of COVID-19, touted unproven drugs, and refused to wear a mask or get the vaccine. Furthermore, after losing his bid for reelection in the fall of 2022 and sowing distrust in the electoral system in the months leading up to the election, on January 8, 2023, Bolsonaro’s supporters attacked numerous Brazilian government buildings in protest of the results, an event that parallels the events in The United States on January 6, 2021. Brazil’s media landscape is dominated by several large private media conglomerates, including Globo, Record, SBT, Bandeirantes, and Folha, which are owned by politically connected individuals who distort coverage favorably. Similar to India, Brazilians also increasingly access news through their smartphones, and especially through YouTube, WhatsApp, and Facebook. Disinformation, especially in political discourse and online, continues to be a problem, although it was especially severe under President Bolsonaro, who frequently attacked the press. Folha, one of the major media conglomerates, even pulled its content from Facebook from 2018-2021 over fake news concerns., Moreover, Brazil is also one of the most dangerous places to be a journalist, as journalists have been killed by criminal groups, especially when reporting on Amazon-related environmental issues. Analysis Both Modi and Bolsonaro have taken fairly personalized approaches to social media. However, while Bolsonaro adopted this approach largely out of necessity, Modi’s decision to do so was a calculated one, as part of his general personalization of Indian politics. Thus, while Modi’s success mirrors those of leaders such as Erdoğan, who actively distort social media, in favor of their own regimes, through laws and the parliament, Bolsonaro appears to more closely resemble less successful populists like Trump. In Brazil, historically, airtime on radio and TV was one of the decisive factors in the election. This changed with Bolsonaro’s election, however, as he had less than 1 percent of all airtime. His ability to capture voters heavily active on social media and his ability to dominate conversations on those platforms helped him mitigate this disadvantage. Bolsonaro upended this traditional advantage through his personalized approach to social media, and especially his activity on the extremely popular WhatsApp. Similar to Trump, his lack of resources for a full-fledged marketing team turned out to be an advantage. Bolsonaro allegedly personally managed his WhatsApp account, and would heavily record his events, which his staff would then forward to supporters through his massive network of WhatsApp groups. Similar to how Kennedy leveraged televised debates to garner voter support, Bolsonaro’s “guerrilla marketing” capitalized on social media, proving particularly effective among its users. Consequently, it is unsurprising that Bolsonaro supporters had the highest rate of social media usage among supporters of all the major presidential candidates. However, it is possible that the personalized nature of Bolsanaro’s social media strategy arose from insecurity and personal hypersensitivity to criticism than from deliberate strategy. At one point, Bolsonaro posted a whole video on social media just to deny reports that he went to the hospital because of illness, instead claiming that he was at the hospital for “personal reasons.” Furthermore, during his 2018 campaign, there were strong accusations and evidence that he had encouraged supporters to pay digital marketing firms to flood WhatsApp with thousands of attack ads, implying that his own campaign team did not have the funds to do so. Consequently, Bolsonaro also resembled Trump in how he overcame a traditional media disadvantage through utilizing free press from posting inflammatory statements on social media that led to free, organic coverage in the mainstream media. Similar to Trump, Bolsonaro’s tendency to make extremely “politically incorrect” and offensive statements was endearing to supporters, who viewed his bluntness as a signal of authenticity. Modi was an early adopter of X, using it to interact with other politicians, convey his policy objectives, and notably, integrate social media into his campaign strategy well before the 2014 elections. But unlike Bolsonaro, Modi’s decision to do so was not out of lack of access to other forms of political messaging. Rather, this was the product of an extensive in-house public relations team and public relations firms that decided to intentionally cultivate an image of Modi as accessible to the people. Therefore,Modi’s ability to cultivate a social media presence that exudes authenticity authentically , especially during the 2019 elections, underscores his success at positioning himself at the center of the BJP’s political strategy. Notably, in both India and Brazil, Bolsonaro and Modi took advantage of WhatsApp’s popularity to coordinate campaigns and spread misinformation through a network of group chats that were extremely difficult to shut down. Not only does WhatsApp’s decentralized nature allow new groups to pop up easily after groups are shut down, but the app’s end-to-end encryption also makes it hard to monitor and identify the spread of misinformation within these groups. In India, the ruling BJP party pioneered the use of social media ahead of the 2019 elections, the first national election where a substantial proportion of the population, around 45 percent, had smartphones, compared to around merely 15 percent in 2014. The BJP effectively utilized group chats in WhatsApp, a platform which the vast majority of Indian smartphone users have downloaded, to target and spread regionally specific messaging, mirroring Trump campaign’s use of Facebook data to similarly micro-target key demographics. Specifically, in India, politicians relied on a network of hundreds of WhatsApp groups, each based in different regions, to coordinate and convey campaign messaging and logistics to supporters. Modi and his staff tailored tweets and messaging strategies, which were then shared with a network of hundreds of thousands of volunteers, who spread the messaging by the millions. In these group chats, the BJP also pushes rhetoric and disinformation that aimed to inflame religious tensions and stoke fear of the Muslim minority among India's majority Hindu population. Examples of disinformation included pornographic deepfakes of reporters critical of Modi’s role in anti-Muslim riots as governor of Gujarat, as well as less directly insidious falsehoods, such as inflated crowds sizes at his rallies., Similarly, in Brazil, where WhatsApp is one of the primary sources of information for its 120 million local users, Bolsonaro supporters paid digital advertising firms to run attack ads in various WhatsApp groups. Here, Bolsonaro’s supporters exploited the intimacy of these groups, similar to Modi and the BJP, enabling them to hyper-specifically target various groups, often with disinformation that spread rapidly and extensively. However, in Brazil, Bolsonaro’s digital content mostly preyed on the fears of those with socially conservative views and dissatisfaction with the establishment. Therefore, prime examples of popular misinformation on WhatsApp include a deep-faked image of former president Dilma Roussef next to Fidel Castro, and a picture allegedly depicting two male employees from Globo, one of the major media companies in Brazil, kissing, which was actually taken at a pride march in New York. Bolsonaro’s network of WhatsApp groups also shared the social media of those critical of Bolsonaro and coordinated mass campaigns attacking critics. More broadly, while both Modi and Bolsonaro rely on WhatsApp as the primary platform for disseminating election-related disinformation, they have extended their operations to other platforms as well. Bolsonaro exploited the popularity of online, partisan sites and social media as sources of news to spread information. A study of the Brazilian 2022 elections found that those who joined political groups on messaging apps such as WhatsApp and used partisan, online sites and social media as their sources of news were more likely to believe in election related-misinformation. Furthermore, every week Bolsonaro live streamed on YouTube, aiming to directly deliver disinformation to his supporters. In these streams, he primarily attempted to discredit the mainstream media, claiming to speak the authentic truth, despite primarily propagating borderline propaganda. Yet notably, unlike Modi, most of his attempts to reduce the independence of the press and institutions was primarily through rhetoric rather than direct suppression and censorship. Modi’s efforts to exploit social media to silence dissent were more extensive and refined, and contributed to his ability to concentrate power in a way Bolsonaro was unable to. Furthermore, he continues to actively suppresses critical content, recently banning access to a BBC documentary investigating his role in a deadly 2002 riot while he was Governor of Gujarat. Modi also weaponizes the regulation of platforms to coerce them into complying with content takedown requests. In 2021, Modi implemented new IT rules under the pretense of combating misinformation. However, these rules, which forced social media companies to hand over user data, take down any content the government deems “restricted,” and hire a local Chief Compliance Officer, seemed to be designed to facilitate the government’s ability to coerce platforms to remove unfavorable content. Under these new rules, the government threatened to sue X and even raided its Indian offices after it labeled BJP politicians’ tweets as manipulated media. Furthermore, Modi has been unafraid to go after major tech companies, and has exploited their fears of being cut off from the massive Indian market. Modi has also pressured X to block access in India to the accounts of Sikh activists and those who are critical of Modi. Modi has not hesitated to punish platforms who resist his demands, and has threatened to jail employees of companies such as Facebook for noncompliance with censorship requests. Furthermore, platforms have also found themselves caught up in the backlash after geopolitical spats. In the wake of deadly clashes at the India-China border in 2020, Modi banned TikTok. Notably, both Modi and Bolsonaro have employed social media platforms to spread false information that contributes to and exacerbates platform violence outside of elections. However, Modi is much more effective at intimidating potential dissenters and translating his network of supporters into tangible organized acts of violence. Modi’s ability to incite violence and his exploitation of and leaning into Hindu nationalism through the spreading of fake news about Muslims or lower castes has inflamed tensions and motivated real-life mob violence and hate crimes. Modi, however, has consistently refused to acknowledge acts of Hindu nationalist mob violence., Bolsonaro intentionally spread false rumors about voter fraud and irregularities in Brazil’s digitalized voting system. These actions resulted in him him having to participate in a runoff in 2018 and ultimately to his electoral loss in 2022. He spread these lies through interviews with traditional media and through directly appealing to users with disinformation on online platforms, for example, through his weekly YouTube live streams. These disinformation campaigns culminated in the January 8th riots in 2023. Unlike Modi, who was running for re-election, Bolsonaro’s social media strategy mirrored Trump’s in that his spreading of misinformation likely came from a place of weakness. Leading up to the presidential election in both instances, Bolsonaro and Trump both had seemingly long odds. Additionally, both of their social media strategies were influenced by their campaign’s limited resources. Therefore, it is likely that Bolsonaro’s dissemination of disinformation regarding electoral fraud in anticipation of the 2018 election stemmed from a sense of insecurity. After all, if Bolsonaro were genuinely confident he was going to win the election, he would not have prepared an explanation for a potential loss before the election even happened. Bolsonaro’s encouragement of violence following the 2022 elections also likely came from feelings of vulnerability and anger at the perceived humiliation of not winning the election. Contrary to Modi, however, outside of social media platforms, Bolsonaro’s network of supporters are less organized, and therefore, have engaged in less acts of violence and physical intimidation. Even the largest violent outbreak under Bolsonaro, the January 8th protests, were nowhere near as deadly or violent as Modi’s army was, as it was more of a last-ditch attempt at holding onto power rather than an intentional, organized, than a demonstration of strength., Similar to Trump, the January 8th riots in Brazil can be interpreted as a product of Bolsonaro lashing out due to a feeling of powerlessness and refusal to accept what he perceived as the embarrassment of not winning the election. Yet, despite the importance and widespread use of social media in the Bolsonaro’s campaigns, Bolsonaro was ultimately unable to retain power due to the differences in political structure between India and Brazil. Brazil has a federal presidential republic, meaning that similar to the US, power is split among the different executive, legislative, and judicial branches, and thus the president inherently has much less authority than the prime minister in India. Because of this, the other branches of government were able to check Bolsonaro’s authoritarian impulses. Specifically, the Brazilian Supreme Court, with its criminal jurisdiction over all public officials, including the president, as well as the Congress’ refusal to endorse Bolsonaro’s assault on judicial institutions, played significant roles in restraining him. Therefore, the judicial branch, in particular, was able to nullify Bolsonaro’s worst attempts at censorship or influencing social media to portray him more favorably. For example, in 2021, when Bolsonaro attempted to ban social media platforms from taking down certain types of misinformation, including misinformation about COVID-19, the Supreme Court and Brazilian Senate nullified the legislation. When Bolsonaro supporters refused to accept his defeat, one of Brazil’s Supreme Court justices ordered the accounts of some of the loudest protesters suspended. As a result of the January 8, 2023 riots, during which Bolsonaro supporters stormed government buildings in protest of the election results, the Superior Electoral Court banned Bolsonaro from running for election again until 2030. Therefore, Bolsonaro's political downfall demonstrates the limitations of social media propaganda when faced with strong institutional checks and balances. In contrast, India is a federal parliamentary republic, which generally leads to much more powerful heads of government, since the prime minister is determined by the majority coalition in the legislative branch. Thus, unlike in Brazil, in this political system, the executive branch inherently has influence over the legislative branch, which enabled Modi to shape government opinion much more rapidly. Therefore, while the combination of the independent judiciary and congress restrained Bolsonaro, Modi has been able to successfully erode the independence of government institutions, including the judiciary, which he has weaponized against opposition politicians through promoting friendly judges and punishing defiant ones. Thus, Modi bears similarity to Viktor Orban in Hungary, who was able to quickly weaken independent institutions due to his unified parliamentary supermajority. Furthermore, he also bears resemblance to Erdoğan, who held a 2017 referendum that amended Turkey’s constitution from a parliamentary to a presidential system. Erdoğan’s presidentialization of a parliamentary system allowed him to consolidate the powers of the leaders in a presidential and parliamentary system into one role while reducing the checks on these powers. Essentially, Erdoğan had centered his party's campaign for seats around his personal appeal, instead of the party's Similarly, Modi’s rise to power in 2014 diverged from historical norms in that, unusually for a parliamentary system, the BJP’s campaign centered around Modi’s appeal as prime minister. This presidentialization of parliamentary elections foreshadowed his ensuing consolidation of power. It is also important to consider how each leader fits into the broader historical context of their respective countries. Most importantly, Modi's social media disinformation campaigns are able to exploit tensions between different ethnic groups that have been present since India gained independence from the British. While Modi has increasingly centralized power under his leadership, his actions must be interpreted and understood in the context of his longstanding commitment to creating a Hindu nation, which has motivated him since he first joined the RSS as a youth. Modi’s actions and ideas align with a larger movement that has been in the works for far longer than he has been in power. Therefore, to understand Modi’s underlying motives, it is important to keep in mind historical events such as the bloody partition of the Indian subcontinent and the history of discrimination against Muslims in India. Since the chaotic 1947 partition of the Indian subcontinent into India and Pakistan, which was done largely along religious lines and led to the death of approximately a million people, Muslims in India have continued to face discrimination. Modi has regularly deployed internet blackouts to silence dissent in the Muslim-majority federally administered Jammu and Kashmir states, which, in 2022, had the most internet shutdowns globally. Under Modi, anti-Muslim lynchings and hate crimes have risen rapidly, and Modi and the BJP have encouraged the spread of Islamaphobic conspiracy theories, such as the COVID-19 pandemic being a “Muslim plot.” Therefore, Modi’s ability to capitalize on the significant issue of religious divisions and focus his social media disinformation efforts around this specific issue, in a manner Bolsonaro could not, have contributed to his enduring resilience. In contrast, Bolsonaro relied on a broader variety of societal tensions,and it is probable that his inability to channel his efforts around a single issue contributed to his ultimate downfall. Bolsonaro positioned himself more generally as a populist outsider who was a break from the establishment. He fed on Brazilians general sense of discontent stemming from general political and economic turmoil to rise to power. However, once he was in office, despite attempting to frame himself as “anti establishment” and railing against “mainstream media,” he could no longer be considered as an outsider. Moreover, unlike Modi, who had substantial governing experience and political organizing experience from his time as governor of Gujarat and his work volunteering for the RSS, Bolsonaro’s status as a relative novice, which was especially evident during his poor management of crises like the pandemic. Before becoming president, Bolsonaro had only served as a legislator, and had limited connections within government, having spent most of his previous political career at the fringes of governmental circles. Furthermore, Modi’s close ties and history with the BJP and RSS naturally provided him with a significantly stronger and more entrenched base of support, forged over decades of advancement through the party ranks. In contrast, Bolsonaro’s frequent switches between political parties, both over the course of his career and even during his presidency, left him isolated and unable to secure substantial support in Congress. Therefore, Bolsonaro’s loss suggests that while social media may have propelled his unlikely presidency, it was not sufficient to maintain his grip on power, particularly coupled with his relative political inexperience. Furthermore, the resilience and independence of civil society and press in Brazil compared to India also helped curb Bolsonaro’s attempts to consolidate his power. For example, as soon as Bolsonaro was elected, protests broke out in several cities. Despite his initial threats to jail left-wing protesters, these threats proved empty as mass protests continued to occur during his presidency., Furthermore, interestingly, Bolsonaro’s attacks on journalists, instead of having a demoralizing effect, actually invigorated journalists, strengthening their resolve and resilience. In contrast, under Modi, the independence of the Indian press has been substantially eroded. The collective efforts of Modi’s online army of trolls, which issues death and rape threats, along with the BJP’s direct intimidation of critical journalists, and the pressuring of media companies to fire or punish disobedient reporters, have effectively coereced many journalists into self-censorship due fear of retribution. For example, in 2018, the gang-rape and murder of an eight-year-old Muslim girl who was kidnapped and tortured for days by a group of Hindu men only gained national coverage after foreign publications picked the story up. Even so, coverage was limited, especially since the BJP organized a rally in support of the accused rapists. Conclusion While both Modi and Bolsonaro disseminate fake news on social media to circumvent traditional media barriers and communicate directly with the electorate, their attempts to control the narrative stem from different motivations. Modi operates from a position of strength,silencing dissenting opinions and consolidating power across the state, whereas Bolsonaro operates from a position of weakness, striving to preserve his tenuous grip on power. Additionally, it appears that while social media strategy played a substantial role in both Bolsonaro and Modi’s rise, it was ultimately external factors specific to their broader context, namely the strength of political institutions and social cleavages that facilitated one’s success over the other. 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Editorial board Foreword Volume II Issue I Introducing the third issue of JPPE In recent years, the world’s attention has increasingly turned to environmental issues. Once a subject that interested only a few committed activists and academics, climate change and other related issues have now gained the interest and concern of a large number of people all around the world. In recent years, we have witnessed the signing of a landmark protocol – the Paris Agreement – that seeks to tackle some of the causes of climate change. Moreover, world leaders of the caliber of Pope Francis, French President Emmanuel Macron and former US Vice President Al Gore have attempted to draw attention to the harm humans cause to the environment. Yet, concurrently we have seen the rise of those who deny the existence or minimize the importance of a concerning rise in world temperature, most notably President Donald Trump. Aside from the political debate on climate change, academics have started engaging with the issue more and more often. Universities all over the world now have departments that focus on environmental studies. Pioneering scholars like Wallace Broecker, Phil Jones, Michael Mann, Susan Solomon and Veerabhadran Ramanathan have devoted their entire career to the study of various aspects of this important issue. Notably, the work of Yale economist William Nordhaus was awarded the Nobel Prize in Economic Sciences in 2018 for “integrating climate change into long-run macroeconomic analysis.” This edition of the Brown Journal of Philosophy, Politics and Economics is, in part, devoted to climate change both as a political and academic issue. To explore this guiding theme, we feature a submission by United States Senator Sheldon Whitehouse, from Brown’s home state of Rhode Island, who has led the charge to raise awareness about climate change in the American political arena. In addition, one of our submissions examines and compares how the environment fits into the political imagination in Germany and the United States. It is our hope that these two pieces will help our readers better understand this crucial global issue. Yet, this edition of this Journal also features pieces on a number of other topics. Amongst others, our submissions explore subjects that range from realism in Chinese cinema to the value of shareholder activism, from gerrymandering in the United States to the ethics of using drones. Indeed, it is our sincere hope that by reading this semester’s edition our readers will be exposed to a number of distinct yet interrelated topics and that the value and insights of these papers will be enhanced when looking at them together rather than individually.

We the Prisoners Considering the Anti Drug Act of 1986, the War on Drugs and Mass Incarceration in the United States Sophia Scaglioni Boston University April 2021 Introduction America was founded upon the notions of equality of opportunity, success through perseverance, and the idea that anyone, if they are hard-working and driven, can ascend socially and economically. Currently, however, the United States finds itself diametrically opposed to these ideas. The prison system in the United States contradicts rights guaranteed in the Constitution along with the promise of social mobility and the American Dream. “Mass incarceration” is a phrase frequently thrown about the political arena. These two words, however, represent 2.3 million American citizens who are in jail or prison today. To contextualize the gravity of this statistic, consider this: while the US has about 5% of the world’s population, it has about 25% of the world’s prison population. The majority of the victims of mass incarceration are Black and Latino men, who, despite having been promised equal protection under the law and a right to life and liberty, find themselves trapped in a system marked by racial disparity. One out of every three black boys and one out of every six Latino boys born today will go to prison at some point in their life while white boys born today have a 1/17 chance to go to prison in their lives. Despite being subjected, on average, to lower living standards in terms of housing and schooling, minority men are held to higher standards in the criminal justice system. While African Americans and whites report using drugs at similar rates, there are six times more Black men serving time for drug possession charges. The United States, a country founded on the notion of opportunity, get to these gruesomely imbalanced statistics through a series of public policy decisions. The minorities who make up these statistics have been disproportionately targeted by one of the Reagan administration’s keystone programs: the War on Drugs. While the policy battle against drugs was certainly started during the Nixon years and Nixon’s policies certainly influenced the oppression of minorities, the most detrimental and consequential laws of the War on Drugs were enacted during the years of the next administration. The Reagan White House, which controlled the executive branch during the 1980s, pushed policies that attacked drug possession and use with stringent criminal punishment. The administration was able to do this by stimulating public support for the War on Drugs; this mobilized Congress to act. The public angst the White House strived to create was based on largely ungrounded facts meant to instill fear in the general public. Impacts of policies implemented through this formula of fear mongering are felt today in the form of racial disparities in the American Criminal Justice System and the institution of mass incarceration. The Anti-Drug Act of 1986 imposed mandatory minimum sentences on the possession and distribution of certain drugs, allocated $2 billion to the crusade against drugs, involved the military in narcotic control, allowed for the death penalty for certain-drug related crimes and bolstered the authority of law enforcement. This policy was only strengthened in the coming years, and parts of this legislation remain in place today. Going to prison in America as a minority male, even when the crime is minor, constitutes a figurative life sentence due to the punitive nature of the Criminal Justice system, which taints a permanent record, complicates employment, ruptures family units and removes voting clout for prisoners. One of the most detrimental legacies of the War on Drugs, however, is the ostracization of former prisoners by American society. The institution of mass-incarceration is the outcome of policies like The Anti-Drug Act of 1986; this paper will analyze how this policy was born, implemented and how its hateful roots permeate the American society today. The legacy of The War on Drugs today is seen in the racial-biases in every step of the American criminal justice system: from investigation to sentencing to serving time. The shameful condition of American Criminal Justice doesn’t need to exist. Hundreds of thousands of people do not need to be imprisoned for minor charges, namely drug possession. In fact, this essay will argue, the American conscience cannot be clear so long as the institution of mass incarceration and its suffocating consequences are allowed to continue. The pillars and promises of our democracy must be restored and the way to do this is found in Portugal. Portugal’s drug legislation took a completely opposite perspective than the United States’ did when faced with a similar drug crisis; this essay will try to answer why that is the case. On July 1st, 2001 the country chose to “decriminalize the use and possession of all illicit drugs” and has since successfully reduced “problematic use, drug-related harms, and criminal justice overcrowding.” The values promulgated by this public policy emphasize recovery, safety and above all else, human dignity. By passing similar legislation, America would ameliorate the shameful condition of our discriminatory prison system and thus hold true to the roots and morals it was founded upon and has now seemingly forgotten. The United States’ current social, economic, and political climate makes the passing of such legislation unlikely. The institutional and cultural factors which influenced the Anti-Drug Act of 1986 (and their contribution to mass incarceration in the United States), compared to the same institutional or cultural factor when applied to Portugal, makes American unwillingness to rectify its broken criminal justice system evident. Ultimately, this reflects a very deep inconsistency between the notions American was founded upon and the values its government actually promulgates. The vantage points through which this essay will consider the opposite policy reactions of the United States and Portugal to drug use and possession are (1) Party Systems, (2) Welfare States, and (3) the role of religion in politics in America and Portugal. This essay will compare America and Portugal within the scope of three lenses: party systems, welfare systems and religious foundations. The vantage points will reveal Portugal’s proportional representation system is more responsive than the American two-party system; its universal health-care system has stronger infrastructure with which to implement a widespread drug policy; the common Catholic faith brings communities together and unifies public opinion. These factors combine clearly when considering the policy decision Portugal implemented in June 2001. A morally-unified public saw a clear issue in the rise of heroin use and asked their coalition-style government for a solution. Legislators turned to and trusted technical expertise to find a creative solution: decriminalization of drug possession and use. The country’s National Health Service was readily prepared and built on pre-existing welfare infrastructure, to implement the policy’s prevention and recovery programs. Once implemented, the public supported it fully. Now, drugs have ceased to be a controversial issue in Portugal and any mention of returning to a War on Drugs style approach is shot down. Party Systems Literature Review Two common forms of party system structures are a proportional representation system and a two-party system. The names are rather self-explanatory: a proportional representation system awards political parties seats in a country’s representative body in proportion to how many votes they receive, while a two-party system has two dominant groups in a representative body. Historically, proportional representation systems are superior to the two-party system when it comes to creating credible commitments because, since more than two ideologies are represented in the legislature, creating a majority coalition requires compromise. The negotiation and communication this requires fosters trust and understanding that bypasses the pettiness often seen in two-party systems. A multiparty system suggests that the negotiation and deal-making involved in the country’s policy decisions are collaborative, balanced, and focused on long-term gains. Conversely, in a winner-take-all two-party system, a lack of openness and communication is expected, and policy is likely to be directed towards short-term gains. The United States’ government fits the mold of a winner-take-all two-party system; the polarizing, negotiation-adverse effects of the system are felt in the Anti-Drug Act of 1986. To understand the negotiation-adverse climate which the 100th Congress faced, circumstances of the political climate must be considered. Firstly, the House and Senate were divided: the House was controlled by Democrats and the Senate by Republicans. Divided government is a common feature of two-party systems which can obstruct meaningful cooperation. According to scholars, when two conflicting ideologies must cooperate it is much harder to reach win-win outcomes than if the negotiators held similar views. The state of the American Congress in 1986 was characterized by divided and increasingly competitive split party control. This made the starting point for negotiation on drug-policy already compromised. Further research on negotiation tells us that the entirety of the policy-making process is hampered by the two-party system, not just its starting point. Studies modeling two-party negotiations found that time pressures and power-projections are crucial in negotiation outcomes—especially when parties are already ideologically opposed. More time and a lack of feeling the need to establish dominance leads to more effective discussions due to a lessened sense of pressure. These factors impacted the internal negotiation climate of the American Congress in 1986. There was an intense pressure from both the executive branch and the public on the already-divided Congress for pivotal drug legislation. These two pressures largely worked hand in hand. Recall the formula of fear mongering used by the Reagan administration mentioned earlier, best exemplified by the executive decision to hire staff specifically to publicize the use of crack cocaine in inner-cities. This spurred intense media coverage, creating pressure from an anxious public for Congressional action. This combines with the final, most crucial circumstance impacting the 100th Congress and the Anti-Drug Act of 1986: 1986 was a midterm election year. Therefore, when the divided, two-party Congress sat down in September to discuss drug policy, they were influenced by both time-pressure from November midterms and power-pressure from the desire to project efficacy and strength to voters right before elections. A lack of meaningful discussion aimed at a long-term solution ensued. Both Republicans in the Senate and Democrats in the House tried to create the most severe laws to acquiesce public nervousness, prioritizing power-projections over a constructive drug policy. Both Republicans and Democrats were blinded by hopes of re-election and failed to act in a long-term-oriented, collaborative manner. This directly stems from a divided two-party system, which creates a hostile and negotiation-adverse starting point only worsened in 1986 by time and power pressures. Welfare State Literature Review The design of a country’s social protection system is a fundamental factor to consider when assessing a drug policy such as the Anti-Drug Act of 1986. A country’s welfare state has a variety of characteristics to be considered. For example: whether a country implements universal coverage healthcare or chooses to implement a means-tested coverage system or whether healthcare is funded through public taxes, payroll contributions or private funding. The Anti-Drug Act of 1986 is nearly 200 pages long and has 21 sections devoted to anti-drug policy measures. Of these sections, several appropriate resources to criminal law enforcement and outline explicit punishments for the use and possession of drugs. The words “penalty” and “enforcement” are included in almost every section title. What words are missing, however, are terms such as “health”, “prevention” and “recovery”. If dangerous drugs were really sweeping the nation in ways so horrendous the Reagan administration claimed merited a crusade as aggressive as the War on Drugs, then where is the mention of recovery and prevention techniques? There is no mention of implementing healthcare programs to assist those suffering from drug abuse in the list of the 21 sections devoted to anti-drug policy measures. None of these sections emphasize the importance of recovery treatment. To find mentions of such programs, one must delve deep into the document, past authorization for the death penalty for certain drug offenses or the use of illegally obtained evidence in drug trials. Only in the most obscured corners of this legislation is minimal policy for prevention found. It calls for a board to come together thrice annually to assess how drug abuse prevention measures are doing at a national and state level, as well as for an increase in drug education programs in public schools. Although the amount of spending allocated for this is unclear, while the $2 billion allocated to increasing policing is concrete. Prevention and recovery are not emphasized in the Anti-Drug Act of 1986 and this may be partly due to the American welfare state which is characterized by high private social spending supported by government tax subsidies for the upper and upper-middle classes. Also, there are hardly any large public social programs that benefit all United States citizens nationally. Instead, America uses means-tested social assistance programs for poor people and social insurance programs (Social Security) for the middle-class, while the richest members of society rely on private healthcare programs. This divided structure existed when the Anti-Drug Act of 1986 was implemented, the same time as America was suffering from an alleged crack-cocaine crisis. Whether or not this is actually true has been heavily disputed: research suggests the crack-epidemic that conservative figureheads preached about was nonexistent, that drug use in urban neighborhoods was actually declining. Regardless of how real the crack-crisis actually was, the intention of the American government was clearly not to aid its alleged victims in recovery, but rather target urban populations. There was little to no mention of a national health strategy to combat the alleged issue. Perhaps (and very concerning morally) this is because those promoting the policy knew the crack-cocaine crisis was fabricated. However, it is possible that the reason the focus was not on treatment but increased criminal sentencing was due to the divided and privatized healthcare system which provided no clear roadmap or infrastructure for a national drug strategy to combat the (supposed) drug epidemic. Role of Religion Literature Review While surprisingly little research has been done on how religion factored into the War on Drugs, it can be said with confidence that religion acts as a polarizing force in American politics when certain religious groups align themselves with political ideologies. That holds true when considering American drug policy during the 1980s: President Reagan was supported fervently by conservative religious groups of evangelical Christians trying to return America to “traditional values”. This alliance between conservative Christians and the Republican party became known as the Moral Majority, a political group which mobilized Christian voters who felt as though they had been overlooked by their government during the years of the 1960s and 1970s; the War on Drugs was popular among these voters and they became one of Ronald Reagan’s most dependable coalitions. The years that the Moral Majority claimed the government ignored their voices overlap, of course, were the years of the Civil Rights Movement. Many members of the Christian Right overlap with another constituency of Reagan’s: whites who resented civil rights progress such as affirmative action. Research found that racial attitudes were a key determinant of white support to “get tough on crime” and the people most likely to support criminal-punitiveness were rural, conservative whites. The people that constitute this demographic also comprise those most dedicated to the Moral Majority: evangelical Christians. It was none other than this religious coalition which, feeling threatened and overlooked by years of Civil Rights progress, saw the War on Drugs as an opportunity to halt racial reform without seeming explicitly racist. There was notable support from the Christian Right for the Anti-Drug Act of 1986. Party Systems Case Study The United States’ Party System is a winner-take-all two-party system. In stark contrast, Portugal’s government is a multiparty, proportional representation system. Recall that multiparty systems suggest collaborative, balanced, and long-term-oriented negotiation, while a winner-take-all two-party system is likely to lack openness, communication and long-term foresight. These expectations are completely met when comparing the Anti-Drug Act of 1986 and the 2001 Portuguese decriminalization policy. While the United States met its (alleged) drug crisis with a criminal offensive campaign, Portugal reacted to its similar drug crisis with a strategy that vowed to reintegrate drug-users into society; a strategy based on recovery, not revenge. Analyzing party systems shows why the countries moved in such different directions. The heroin crisis that struck Portugal from 1980-2000 saw the highest rate of HIV infection in the entire European Union plaguing the relatively small country. During the two decades prior to the decriminalization policy, the Portuguese government responded to the epidemic by implementing harsh policies administered by the criminal justice system. Conservative politicians who boisterously condemned drug use supported this approach despite its failure to produce results. The heroin crisis was escalating quickly and the coalition government (The Council of Ministers, Portugal’s Parliament) saw the need for innovative policy—and the need to act fast. Proportional-representation governments are known to use deliberative negotiation tactics (like relying on third-party expertise) to form creative credible commitments. In keeping with this standard, Portugal relied heavily on technical expertise in creating their decriminalization policy. A panel of experts (called The Commission for a National Drug Strategy) was assembled to analyze the efficacy of the American-inspired, criminally punitive approach Portugal was using to combat its heroin crisis. The panel stated the War-on Drugs-style approach was “squandering resources” and advised for a revolutionary new tactic. They suggested converting drug use and possession to an administrative offense, rather than a criminal one. The goal was to regard drug users as full members of society rather than outcasts and criminals. The Council of Ministers accepted almost the entirety of the expert report in October 2000 and has since seen a reduced burden on its criminal justice system, increased uptake of drug treatment, fewer deaths and diseases related to opioids and a reduction in retail prices of drugs. While the United States suffered a crack-cocaine crisis (or so the Reagan administration wanted Americans to believe) in the 1980s which directly paralleled Portugal's heroin crisis, there was little to no use of strategies like reliance on technical expertise to find a solution in Congress. Rather, the hyper-competitive, negotiation-adverse two-party system of the United States Congress went straight for power-projecting, shortsighted policies like the Anti-Drug Act of 1986, which drastically increased drug arrests, thus ostracizing thousands of Americans into the punitive criminal justice system. The harsh system created by the Anti-Drug Act of 1986 manifests itself today in the mass-incarceration of ethnic minorities. The permanence of this system is the divisive nature of our two-party system which did not end with the Reagan years. Up until very recently, no actor in the American federal sentencing system, including Congress, the President or the Attorney General, tried to propose innovative legislation to create a real shift in how the United States’ criminal justice system responds to drug use and possession. In fact, even the most significant policy developments have continued to rely upon the Anti-Drug Act of 1986 for federal sentencing structure. The lack of forward-thinking, creative policy in American drug strategy is caused by the divided two-party system which is just as unwilling to unite in the name of long-term collective gains today as it was in the 1980s. When Portugal noticed it had a heroin epidemic, its coalition-style government sought effective action to better its citizen’s health. Simultaneously, Ronald Reagan sought harsh retribution against drug users by targeting black men as criminal offenders over the possession of minor quantities of drugs. Policies from the War on Drugs, like the Anti-Drug Act of 1986, have deprived thousands of people of voting rights and has forced them to live in what some scholars have called an “under-caste” of society”. The United States’ two-party system facilitates the implementation and permanence of policies targeting ethnic minorities for the possession and use of drugs. Welfare State Case Study If the welfare state of a country matters in how drug policy is implemented, a difference is expected between the drug policy of a country with free, universal healthcare and the drug policy of a country with a system like that of the United States (few national programs for all citizens and a division along class lines of where one’s social safety net comes from). Portugal exemplifies the former of these two options: the country’s National Health Service provides free, universal coverage, protecting all citizens regardless of private wealth. For this reason, when the expert panel assessing the drug crisis proposed making drug use a health, rather than a criminal, concern, the Portuguese Council of Ministers was willing to listen. The 2001 decriminalization policy stresses a humane approach to drug abuse by providing resources in the areas of prevention, harm-reduction and treatment programs. The American healthcare system is marked by division between private and public healthcare sources and a lack of universal coverage programs. This resulted in no groundwork for a hypothetical national health strategy when American legislators were considering drug reform in the 1980s (though scholars question if their motivations were genuine enough to consider reform based on healthcare, rather than criminal punitiveness). This juxtaposes Portugal, where the National Health Service had been well-equipped for years to provide universal, free, public-sponsored health coverage and was able to adapt efficiently to the prevention and treatment programs set forth in the 2001 decriminalization policy. João Goulão, the architect of Portugal’s policy, reflected on the conclusions of the expert panel that was obtained to help the government find a long-term, creative solution to the drug issue. “It made much more sense for us to treat drug addicts as patients who needed help, not as criminals,” he said. This leads directly to the chief priority of Portuguese drug strategy: not to allow the marginalization of those using and possessing drugs. In complete antithesis, the marginalization of those using and possessing drugs was, some scholars have argued, the priority of the architects of American drug strategy. This may be partially due to the different welfare states in each country: the American welfare state lacks national unity and thus, promotes individualism while the Portuguese welfare state is quite literally defined by national cohesiveness and inclusivity. Role of Religion Case Study Religion matters when considering policies a country implements because a country with unified religious opinions will see a more broad public consensus over issues while a country where religion acts as a polarizing force will not. The latter of these two options represents the United States, where the Moral Majority supported the War on Drugs despite its racially divisive policies. In what is perhaps the most prominent contrast of this entire paper, Portugal has a public which is incredibly unified religiously. Although Portugal has no official national religion, almost 90% of its population identifies as Roman-Catholic. In keeping with regional trends (with culturally and geographically similar countries like Spain and Italy), regular mass attendance, is on the decline; while devout Catholicism may be fading, the deep-seeded roots of the religion are ingrained both in everyday life and in politics. One of the most important impacts which Catholicism has had on Portuguese society is rendering it rather socially conservative. As the heroin crisis of the 1980s and 1990s escalated, it cut across all classes, impacting those in the highest and lowest echelons of Portuguese society alike. This meant that drug use became unusually visible: from shady street corners to the most fancy of discotheques. This did not bode well with the socially conservative Catholic society and the unified public religion put pressure on public officials to act. Conversely, public religious sentiment in America during the years of the Anti-Drug Act of 1986 were the opposite of unified. Groups of the same religion, such as the Moral Majority and black churches across America, both Christian organizations, failed to see eye-to-eye on drug issues. One group supported the War on Drugs and the other denounced it. The Christian Right’s support for the War on Drugs and the subsequent legacy of mass incarceration it established, shows a fundamental divide between the policy Black Christians desire and what White Evangelicals push for. The lack of unified sentiment from Christians in the United States, both in the 1980s and now, starkly contrasts Portugal where unified religion lead to widespread public support for ethical principles which directly motivated politicians to act. For the thousands of Black and Latino men who face the dark realities of mass-incarceration in the United States, religious-based political arguments and movements have made little headway on aiding their struggles and religion seems to drive parties and their constituencies farther and farther apart on key issues rather than unite and mobilize them. In Portugal, religion unites; in America, it polarizes. Conclusion Fundamental American writings like the Declaration of Independence and the United States Constitution promise the right to life, liberty and equal protection under the law. It is grim to realize these rights and protections have been unjustly removed for millions of incarcerated citizens. Minorities in America, specifically African American men, have been historically discriminated against, and the United States’ prison system is a continuation of this marginalization, as mass-incarceration locks a large percentage of African Americans out of mainstream economy and society. The shameful condition of the United States’ prison system is a legacy of the War on Drugs and policies like the Anti-Drug Act of 1986 which called for mandatory minimum sentences on the possession of certain drugs and allocated $2 billion to the crusade against drugs. It is still the backbone of federal sentencing guidelines today. Policies like this are why the incarceration rate has skyrocketed since the 1980s despite violent crime rates falling. The persistence of racial-targeting and racial-biases in the American criminal justice system today, including the fact that legislation such as the Anti-Drug Act of 1986 is still referenced, is opposed to the fundamental values upon which America was founded. The right to equal protection under the law, and the right to life and liberty are all desecrated by the institution of mass-incarceration. How did policy like the Anti-Drug Act of 1986 become implemented? It was due to the Reagan White House’s formula of fear mongering: creating public angst over a crack-cocaine crisis (which scholars dispute even existed pre-War on Drugs) to push a punitive criminal agenda. But, if not criminal harshness, what other ways might an industrialized and modern country respond to an increasing drug problem, supposed or real, and protect the rights and liberties of its citizens while doing so? Portugal responded to growing concern over drug use by rejecting a War-on-Drugs-style approach and instead decriminalized drug possession and use. This essay compared America and Portugal within the scope of three lenses: party systems, welfare systems and religious foundations. The vantage points revealed Portugal’s proportional representation system is more responsive than the American two-party system; its universal health-care system has stronger infrastructure with which to implement a widespread drug policy; the common Catholic faith brings communities together and unifies public opinion. These factors combine clearly when considering the policy decision Portugal implemented in June 2001. A morally-unified public saw a clear issue in the rise of heroin use and asked their coalition-style government for a solution. Legislators turned to and trusted technical expertise to find a creative solution: decriminalization of drug possession and use. The country’s National Health Service was readily prepared and built on pre-existing welfare infrastructure, to implement the policy’s prevention and recovery programs. Once implemented, the public supported it fully. Now, drugs have ceased to be a controversial issue in Portugal and any mention of returning to a War on Drugs style approach is shot down. These differences between America and Portugal, revealed by the case studies, are marked by increased responsiveness and morality on the part of the Europeans. This difference is further amplified when considering the country’s similarities: both advanced and well-educated, both industrialized and marked by diversity. If Portugal is able to implement policies which respond to the needs of their citizens, both in terms of health-concerns and political demands, while ensuring human rights are emphasized, why can’t the United States? The observed phenomena emphasizes the United States’ unwillingness to address the flaws of its criminal justice system due to its polarized party-system, divisive welfare-state and religious-infighting. Where the Portuguese Parliament is willing to compromise, the United States Congress chooses to bash negotiation. Where Portuguese healthcare is universal and free, the American welfare state is divisive and lacks coordination. Where Portuguese society is unified socially, American society is only further polarized. All of these lenses show one underlying theme: Portugal values and promotes human dignity while the United States promotes marginalization of its minorities and the polarization of its citizens. It is not America, but rather Portugal which emphasizes the inalienable right to life and liberty and equal protection under the law. While this realization may seem pessimistic, it should be taken constructively. These are, ultimately, American ideals which are being instilled abroad. Before mass incarceration and racial-biases in our prison system can truly end America must do a few things. Some may say these are radical and impossible but rather, they are the only actions in keeping with the country’s founding values. It must strive to increase responsiveness in its party system which currently only provides two diametrically opposed and negotiation-adverse viewpoints. It must attempt to unify a national healthcare strategy to benefit all citizens, regardless of race or wealth. It must remove the use of religion as a political shield during times of policy discussion and use it as a tool for unity instead. Only then, once the American party, healthcare and religious systems are rectified in order to align with this country’s intended values, can the horrors of mass-incarceration be amended. Works Cited Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New Press, 2010. Bajekal, Naina. “Want to Win the War on Drugs? Portugal Might Have the Answer.” TIME, 1 Aug. 2018. Balakrishnan, P. V. (Sundar), and Jehoshua Eliashberg. “An Analytical Process Model of Two-Party Negotiations.” Management Science, vol. 41, no. 2, Feb. 1995, pp. 226–243. Berman, Douglas A. “Reflecting on the Latest Drug War Fronts.” Federal Sentencing Reporter, vol. 26, no. 4, Apr. 2014, pp. 213–216. “Criminal Justice Fact Sheet.” NAACP, 2019, www.naacp.org/criminal-justice-fact-sheet/. Hughes, Caitlin Elizabeth, et al. “What Can We Learn From The Portuguese Decriminalization of Illicit Drugs?”, The British Journal of Criminology, Volume 50, Issue 6, November 2010, Pages 999–1022. “Mass Incarceration.” American Civil Liberties Union, 2019, www.aclu.org/issues/smart-justice/mass-incarceration. Peffley, Mark, et al. “Racial Stereotypes and Whites' Political Views of Blacks in the Context of Welfare and Crime.” American Journal of Political Science, vol. 41, no. 1, 1997, p. 30. Roberts, Dorothy E. “The Social and Moral Cost of Mass Incarceration in African American Communities.” Stanford Law Review, vol. 56, no. 5, 2004 Stanford Law Review Symposium: Punishment and Its Purposes, 1 Apr. 2004, pp. 1271–1305. Robinson, Carin. “From Every Tribe and Nation? Blacks and the Christian Right.” Social Science Quarterly, vol. 87, no. 3, 2006, pp. 591–601. JSTOR. Smith, Catherine Delano, and Jose Shercliff. “Portugal: Government and Society.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 2019. United States. Cong. Anti-Drug Abuse Act of 1986. 99th Cong. Public Law 99-570. Washington: GPO, 1986. Van Het Loo, M., Van Beusekom, I., & Kahan, J. P. (2002). Decriminalization of Drug Use in Portugal: The Development of a Policy. The ANNALS of the American Academy of Political and Social Science, 582(1), 49–63. Williams, Daniel K. “Reagan’s Religious Right: The Unlikely Alliance between Southern Evangelicals and a California Conservative.” Ronald Reagan and the 1980s, 2008, pp. 135–149.

Richard Wu Teotl vs. Tao: Comparing Tlamatinime and Taoist Thought Richard Wu Today, academic scholars and the general public primarily remember the Aztecs for their bloody human sacrifices, towering pyramid temples, and glittering gold wealth. However, lesser-known about the Mexica (Aztecs) is their rich tradition of philosophy, which flourished in isolation from its Old World counterparts. This research paper examines Mexica philosophy, drawing comparisons to another similar school of thought: Taoism in ancient China. Though separated by thousands of miles, Aztec thinkers in Mesoamerica and Taoist sages in China both independently arrived at the idea that the universe exists as a dialectical monism (a unified whole manifested through opposing forces). To the Mexica, the universe was in- fused with Teotl, a divine life-force analogous to the notion of Tao in Taoism. Like the Taoist conception of opposing-yet-interconnected yin and yang forces, Teotl was seen as a unified, interdependent duality. This common perception of the universe’s existence as a dialectical monism prompted both Mexica and Taoist philosophers to ponder the question: How should people live in a world permeated by duality? Interestingly, the two different philosophies reached the same conclusion: a moral, virtuous life is a life of balance. Thus, for Aztecs and Taoists alike, philosophy was not solely confined to the realm of intellectual inquiry; rather, philosophy became an integral part of everyday life. When Spanish conquistadors arrived at the Mexica (Aztec) capital of Tenochtitlan in 1519, they were astounded to encounter one of the world’s largest cities of the period. In fact, Tenochtitlan’s canals, markets, gardens, and temples so impressed the Spaniards that the conquistador Bernal Diaz del Castillo would later compare the Mexica capital city to an enchanting dream (1). However, within the next two years, this enchanting dream would be destroyed, both physically and ideologically. The Spanish razed Tenochtitlan to the ground during their conquest of Mexico, covering the ruins of Aztec buildings with what would become Mexico City. Accompanying the conquest was the substantial destruction of Mexica cultural heritage—zealous Spanish clergy members replaced Aztec gods with Jesus and the Virgin Mary, ended the use of the Mesoamerican calendar, and burned countless codices. Further, the Spanish conquest erased another essential facet of Mexica culture: the Aztec school of philosophy. Mexica philosophers, called tlamatinime (literally ‘knowers of things’ in the Aztec language, Nahuatl), developed a rich intellectual tradition in complete isolation from Pythagoreanism in Greece, Confucianism in China, or any other philosophy of the Old World (2). In regards to philosophy at large, much of Western academia has historically dismissed non-Western philosophical inquiry, including Mexica thought. However, newer works of the past few decades—such as Ben-Ami Scharfstein’s paper “The Western Blindness to Non-Western Philosophies”—argue against this Euro- centric view of philosophy, validating the rich history of philosophical engagement in non-Western cultures (3). In this context of wider philosophical discussion, this work intends to shed light on a topic that has received relatively little academic attention, thereby adding to recognition of non-Western thought. This paper seeks to compare and contrast Mexica tlamatinime thought with another non-Western school of philosophy: Taoism in ancient China. The first half of this paper examines the historical context, metaphysics, ethics, and societal implications of Aztec philosophy. The second half includes a comparative examination of Taoism and its historical context, metaphysics, ethics, and societal implications. Though seemingly irrelevant to one another, these two philosophies share many similar ideas regarding metaphysics and ethics––notably, the concept of the universe as a dialectical polar monism, as well as an emphasis on balance. Despite the ideological resemblance, however, these philosophies also developed within different sociopolitical contexts, leading the tlamatinime and the Taoists to diverge in their views on the applications of philosophy. I. Aztec Philosophy Note: Though the Spanish destroyed most of the pre-Columbian Aztec codices following the conquest of Mexico, many post-conquest era documents from both native and Spanish sources exist today. In addition, poems composed prior to the conquest survived through oral transmission. From these remaining sources and archaeological studies, scholars can glean an understanding of Mexica thought today. A. Origins and Context of Aztec Philosophy Although Aztec philosophy may have had precedents in the earlier Teotihuacano or Toltec civilizations, the scarcity of written documents from these older civilizations precludes historiographic study of pre-Mexica thought in central Mexico. However, philosophical inquiry blossomed in Mesoamerica by the time of the Aztecs. In his book 1491: New Revelations of the Americas Before Columbus, historian and writer Charles C. Mann references many surviving Nahuatl manuscripts that describe Mexica tlamatinime meetings in cities like Tenochtitlan (4). The fact that the tlamatinime frequently met for intellectual exchanges and discussions indicates that the Aztecs already had a flourishing philosophical tradition prior to the Spaniards’ arrival. Interestingly, this philosophical tradition emerged from the Aztecs’ obsession with a central problem: the transience of existence. Mortality and impermanence permeated many aspects of Mexica culture, from religion to society to intellectual thought. In religion, human sacrifices sought to prolong the universe’s existence by sustaining the gods with human blood (5). In everyday society, annual death celebrations—which have survived to this day in the form of Día de Muertos (Day of the Dead) festivities—reminded all of the inevitability of mortality (6). Finally, in intellectual circles, the tlamatinime grappled with the philosophical implications of life in a transitory world (7). A poem ascribed to Nezahualcoyotl, a tlamatini (the singular of tlamatinime ) and tlatoani (ruler) of Texcoco, serves as a memento mori in its contemplation on the ephemeral nature of existence: I, Nezahualcoyotl, ask this: Do we truly live on earth? Not forever here, only a little while. Even jade breaks, golden things fall apart, precious feathers fade; not forever on earth, only a moment here (8). The question presented at the beginning of Nezahualcoyotl’s poem is one that Mexica thinkers contemplated: “Do we truly live on earth?” (9). When analyzing this question, the words ‘truly’ and ‘earth’ should be emphasized for their nuances in the Nahuatl language. The Nahuatl word for ‘truth,’ neltiliztli , also means ‘rootedness’ (10) since the Aztecs believed “what was true was well-grounded, stable and immutable, enduring above all” (11). Indeed, this was what the tlamatinime sought: to find what was true and enduring while living in an impermanent world fraught with hazards. The Nahuatl word for ‘earth,’ tlalticpac , also denotes “a narrow, jagged, point-like place surrounded by constant dangers” (12). When these linguistic nuances are placed together into the poem’s context, the answer to Nezahualcoyotl’s question emerges: people do not ‘truly’ live on earth because humans’ earthly existence is fleeting, and even the short duration of that existence itself is filled with struggle. This implied answer to Nezahualcoyotl’s question echoes the response seen in the poem: “Not forever here, / only a little while” (13). According to Nezahualcoyotl, not only is human existence fleeting, but even the most valuable materials—gold, jade, precious feathers—are also subject to the ravages of time. The sobering realization that nothing in the world lasts forever prompts the questions that drive Mexica philosophy: What is enduring and true? How can humans, “beings of the moment[,] grasp the perduring?” (14). Most importantly, how should people live on the tlalticpac ? B. Ideas of Aztec Philosophy To address the transience of existence and find a source of rootedness on the hazardous tlalticpac , the Mexica tlamatinime turned to metaphysics. Central to the Aztecs’ conception of the universe is Teotl (literally ‘spirit’ or ‘god’ in the Nahuatl language), an unending, divine life-force that simultaneously transcends and permeates all of existence. According to the tlamatinime , this life-force not only comprises everything in the universe, but also presents itself in the “ceaseless, cyclical oscillation of polar-yet-complementary opposites” that pervades the cosmos (15). The worldview espoused by Mexica metaphysics can best be described as a “dialectical polar monism,” a term which can be broken down into its constituent words for further insight (16). ‘Monism’ posits that everything in the universe is part of a single, seamless whole. ‘Polar’ implies that this single whole consists of opposing halves. ‘Dialectical’ suggests that these opposing halves are not separate but rather constantly interacting, like two sides debating in discourse. This perception of the world as a dialectical polar monism can be observed in surviving Mesoamerican artwork. Archaeological investigations have found half- face-half-skull masks that depict both life and death in locations such as Tlatilco and Oaxaca (17). Similarly, the Life-Death Figure sandstone sculpture displayed at the Brooklyn Museum portrays a living manifestation of the deity Ehecatl-Quetzalcoatl on its front and a skeleton manifestation of Ehecatl-Quetzalcoatl on the back (18). These artworks, which can be said to represent a state of being “neither- alive-nor-dead-yet-both-alive-and-dead all at once,” convey the inextricable na- ture of life and death: life inevitably ends in death, but death gives way to new life (19). Figure 1. Split-Face Mask (20) Image Credit: Photo Courtesy of the National Institute of Anthropology and History of Mexico (Licensed Under Creative Commons BY-NC-ND 4.0) Figure 2. Life-Death Figure (21) Image Credit: Huastec. Life-Death Figure , 900-1250. Sandstone, traces of pigment, 62 3/8 x 26 x 11 1/2 in. (158.4 x 66 x 29.2 cm). Brooklyn Museum, Frank Sherman Benson Fund and the Henry L. Batterman Fund, 37.2897PA. Creative Commons-BY (Photo: 37.2897PA_front_PS11.jpg) In a similar fashion, the tlamatinime saw other pairs of opposites—male/female, light/dark, etc.—as mutually-intertwined dualities infused with Teotl . Thus, with the view that the universe is a dialectical polar monism permeated by the spiritual energy of Teotl , Mexica metaphysics gave the tlamatinime an interpretation of the transience of existence. The unending dialectical oscillations between the universe’s polar extremes prevent any kind of long-term stability or rootedness. Despite this lack of stability, Teotl exists with reliable consistency. Scholar James Maffie comments: .... Teotl is nevertheless characterized by enduring pattern or regularity. How is this so? Teotl is the dynamic, sacred energy shaping as well as consti- tuting these endless oscillations; it is the immanent balance of the endless, dialectical alternation of the created universe’s interdependent polarities (22). Significantly, Teotl endures because it exists in a state of “immanent balance” that permeates the entirety of existence (23). While the dialectical nature of Teotl can give rise to short-term or localized polar extremes, the oscillations of Teotl ultimately balance out those extremes, promoting long-term overall balance throughout the universe. From this understanding of Teotl , the tlamatinime arrived at the conclusion that only through attaining balance and avoiding extremes can humans succeed in finding rootedness on the precarious tlalticpac . C. Ethical/Societal Impacts of Aztec Philosophy The Mexicas’ metaphysical focus on duality and balance led to the development of Mexica ethics. The tlamatinime believed that a virtuous, moral life promotes balance and abstains from excess. The Illustrated Encyclopedia of the Aztec and Maya gives an overview of Mexica ethics and morality: Aztecs were generally agreed as to what constituted good behavior. Ac- cording to Bernardino de Sahagun, author of General History of the Things of New Spain , virtuous Aztecs...brought energy to their work, without overin- dulging in sleep but rising early and laboring for long hours. They ate and drank in moderation; drunkenness was particularly frowned upon. They did not make a great noise when eating, thought carefully before speaking, and were circumspect in what they said. They dressed and behaved with modesty (24). Indeed, the Aztec education and law systems exhibited the importance Mexica philosophy placed on living a balanced life. In education, Aztec schools strove to instill moral virtues in young students. These schools, which often hired tlamatinime as teachers, allowed Mexica philosophy to shape the growth and development of Aztec youth (25). A common Nahuatl instructive proverb of the Florentine Codex, a 16th-century codex documenting Aztec culture, demonstrates the impact of tlamatinime thought on Mexica education: “ Tlacoqualli in monequi . [Translation and meaning:] Moderation is proper. We should not dress in rags, nor should we overdress. In the matter of clothing, we should dress with moderation” (26). By teaching younger generations to lead moderate, balanced lives, the Mexica education system successfully integrated and adapted the teachings of the tlamatinime . Similarly, Aztec laws display the influence of tlamatinime thought. The renowned tlamatini and tlatoani Nezahualcoyotl, who transformed his city into “‘the Athens of the Western World,’” enacted Texcoco’s law code (27). Under Nezahualcoyotl’s legal reforms, the judicial system criminalized actions and behaviors which were viewed as disruptive to societal balance, including “treason against the king, adultery, robbery, superstition, misuse of inherited properties, homicide, homosexuality, alcohol abuse, and military misconduct” (28). As stated by the chronicler Fernando de Alva Cortés Ixtlilxóchitl, Nezahualcoyotl’s new legal code was considered so advanced and efficient that even the “kings of Tenochtitlan and Tlacopan [the other two most significant cities of the Aztec Empire] adopted Nezahualcoyotl’s laws and governmental standards” (29). The tlamatinime not only played a crucial role in fostering Aztec intellectual life; they also nurtured a more balanced and harmonious society. Unfortunately, as Mann laments in 1491 , the loss of the Mexica philosophical tradition after the Spanish conquest “was a loss not just to [the Aztecs]...but to the human enterprise as a whole” (30). II. Taoist Philosophy Note: This section will consider another school of philosophy, Taoism, and compare and contrast Taoism with Aztec philosophy. The romanizations ‘Taoism’ and ‘Daoism’ refer to the same school of thought; for the sake of consistency, the name ‘Taoism’ will be used in discussion from here on. However, since the alternative romanization ‘Daoism’ is also commonly accepted in academia today, some quotations will contain the name ‘Daoism’ instead of ‘Taoism’ or refer to the philosophical concept of ‘Dao’ instead of ‘Tao.’ A. Origins and Context of Taoist Philosophy More than a millennium before the rise of the Aztec Empire in Mexico, China’s Zhou Dynasty splintered into a multitude of warring kingdoms. In the turbulent era of warfare and chaos that followed, an unexpected development occurred: the blooming of Chinese philosophy, a phenomenon later referred to as the “Hundred Schools of Thought” (31). Because of the political fragmentation of the time, no intellectual orthodoxy existed to restrain philosophical inquiry, and China’s warring states were thus open to various different schools of thought. The intellectual diversity of this period sprouted many of imperial China’s foundational philosophies, such as Confucianism, Legalism, Mohism, and Taoism. Of these philosophies, Taoism bears much resemblance to Aztec philosophy. Few historical records about the early history of Taoism survive today due to the Qin dynasty’s book-burning campaigns, but remaining Chinese sources trace Taoist philosophy to the teachings of the legendary sage Laozi, purported author of the Tao Te Ching , and the philosopher Zhuangzi, who is credited with writing the Zhuangzi (32). Unlike the Confucians of the time, who were primarily interested in applying theories of ethics to human relationships, Taoists stressed “meta-ethical reflections [which] were by turns skeptical then relativist, here naturalist and there mystical” (33). Thus, from a metaphysical standpoint, “Daoism is naturalistic in that any first-order moral dao [way] must be rooted in natural ways” (34). In other words, Taoist philosophers were skeptical of Confucianism’s rigid ethical emphasis on society and human relationships; instead, they looked beyond the human world to metaphysics and the natural environment to guide their reflections on ethics, a philosophical pursuit somewhat similar to that of the Mexica tlamatinime . Political history often greatly shapes the development of philosophy. While the tlamatinime of the Aztec Empire lived during a time of political unity and prosperity, Taoism and the other Chinese philosophies among the “Hundred Schools of Thought” were established during the Spring-Autumn and Warring States periods, when China was filled with political strife and divided into separate states. As a result, Mexica thought is a more unified body of philosophy than the diverse schools of traditional Chinese thought. Further historical developments complicate the disparities between Mexica and Taoist thought. Due to imperial China’s later history of relative political and cultural unity, “many philosophers of the time [Song through Qing dynasties] developed theories and methods of self-cultivation that mixed Confucianism with Buddhism and Daoism” (35). The philosophical and religious blending of later Chinese history highlights an important difference between the schools of thought. Whereas Chinese zhe xue jia (philosophers) could build upon these other theories, Mexica tlamatinime, as the product of an isolated, cohesive philosophical tradition, did not have significant contact with other philosophies, and thus they lacked the opportunity to engage with external ideas. B. Ideas of Taoist Philosophy Taoism centers around the concept of Tao . Often translated to English as “way,” the Tao drives the main question behind Taoist philosophy: What is the right way for people to live? Like the tlamatinime, who asked how humans should live on the tlalticpac , Taoist thinkers did not pursue philosophy for the sake of philosophy. Rather, they aimed to reach an understanding of how to best approach everyday life. To the Taoists, the concept of Tao as “way” is central to this understanding. With that said, the term ‘way’ inadequately describes Tao in many contexts. Sinologist Arthur Waley notes that the Chinese word Tao comes with multiple connotations: ...[Tao] means a road, path, way; and hence, the way in which one does something; method, doctrine, principle...in a particular school of philosophy whose followers came to be called Taoists, Tao meant ‘the way the universe works’; and ultimately something very like God, in the more abstract and philosophical sense of that term (36). Waley’s definition of Tao as “the way the universe works” is a more elaborate and accurate description than the simple “way,” but this designation still does not fully capture the essence of Tao (37). According to scholar Chad Hansen, Tao “appears more metaphysical than ‘way,’” (38) an assertion which is supported in the Zhuangzi by Zhuangzi’s statement, “Fishes breed and grow in the water; man develops in the Dao ” (39). This analogy implies that the Tao is like an endless metaphysical ocean that surrounds and encompasses all of existence. Zhuangzi’s conception of the Tao is analogous to Mexica philosophy’s idea of Teotl: Teotl and Tao are both seamless totalities that make up the universe and everything in it. Another important aspect of the Taoist worldview is the notion of yin and yang forces. Yin is associated with darkness, coldness, and passivity, while yang refers to light, warmth, and action. Taoism posits that these “correlatives are the expressions of the movement of Dao ...not opposites, mutually excluding each other... [but rather] the ebb and flow of the forces of reality: yin / yang , male/female; excess/ defect; leading/following; active/passive” (40). In the Tao Te Ching , Laozi presents the nature of the yin-yang duality through several seemingly paradoxical statements: It is because every one under Heaven recognizes beauty as beauty, that the idea of ugliness exists. And equally if every one recognized virtue as virtue, this would merely create fresh conceptions of wickedness. For truly ‘Being and Not-being grow out of one another; Difficult and easy complete one another. Long and short test one another; High and low determine one another. Pitch and mode give harmony to one another. Front and back give sequence to one another’ (41). Laozi’s first claim that the recognition of beauty begets the idea of ugliness initially appears contradictory. Upon further inspection, it becomes apparent that a perception of what is beauty also requires an understanding of what is not beauty, and thus, of what is ugly . Likewise, the other opposites in the pairs mentioned—virtue/wickedness, being/non-being, difficulty/easiness, and so on—appear to be mutually exclusive antitheses, but are in reality inseparable and interdependent entities. This cyclic nature of duality portrayed by Laozi and other Taoist thinkers parallels the dialectical oscillations of Teotl in tlamatinime thought. In examining the concepts of Tao and yin-yang in the context of Taoist philosophy, a noteworthy conclusion arises: Taoist metaphysics, like Mexica metaphysics, perceives the universe as a dialectical polar monism. Both philosophies view the universe as a cyclical, oscillating whole permeated by balance between polar extremes. In the case of the tlamatinime , this balance is an aspect of Teotl ; in the case of the Taoists, this balance is an aspect of the Tao . Visually, an artistic interpretation of this idea can be seen in the Taijitu symbol associated with Taoism (42). The Taijitu symbol consists of a black sliver (representing yin ) and white sliver (representing yang ) melded together into one circle, which represents the unity implicit in duality described in the Tao Te Ching . Each sliver contains a dot of the opposite color, indicating that yin and yang are mutually interconnected—in yin can be found yang , and in yang can be found yin . The Taijitu symbol bears striking aesthetic and ideological similarities to Aztec designs pictured in the Codex Magliabechiano (43). The Aztec designs, known as xicalcoliuhqui motifs in Nahuatl, represent the universe’s dialectical “motion-change...[that] nourishes and renews existing cycles [of Teotl ] as well as initiates new cycles” (44). Figure 3. Taijitu Symbol (45) Image Credit: Image Courtesy of Gregory Maxwell (Public Domain) Figure 4. Codex Magliabechiano Illustrations (46) Image Credit: Photos Courtesy of Ancient Americas at LACMA (ancientamericas.org) C. Ethical/Societal Impacts of Taoist Philosophy Like the Aztec tlamatinime , Taoist philosophers also applied their metaphysics to ethics. In Taoist ethics, the definition of Tao as “way” is relatively fitting, as Taoist ethics seeks to understand the right way to live. But how can this way be applied to everyday life? The Tao Te Ching provides an answer: Those who possess this Tao do not try to fill themselves to the brim, And because they do not try to fill themselves to the brim They are like a garment that endures all wear and need never be renewed (47) In this passage, Laozi uses the imagery of a bucket filled to the brim with water to describe people who lead lives of overindulgence. Like the bucket—which contains an excess of water and cannot be easily carried without spilling and wasting some of its contents—people who lead lives filled with excess gluttony, greed, or lust will end up wasting their resources, leading to an unsustainable way of life. Thus, Laozi believes that people can maintain a sustainable life by avoiding extremes and excess. By not filling up the bucket completely to the brim, one will be able to carry the bucket without spilling and wasting any water. Therefore, those who lead lives of balance and moderation “need never be renewed” (48). Laozi’s advice echoes the tlamatinime teachings seen from phrases such as tlacoqualli in monequi (moderation is proper). Thus, for both the Taoists and the tlamatinime , balance and moderation play a crucial role in ethics. Despite the significance of balance in both Taoist and Mexica ethics, the two philosophical traditions approached societal institutions differently. While the tlamatinime actively encouraged balanced, proper behavior through educational and legal systems, Taoist philosophers saw human institutions—including schools and laws—as a source of imbalance to the universe’s natural harmony. This Taoist opinion rejected Confucianism’s obsession with order and rule-setting. Scholar Ronnie Littlejohn comments: Confucius and his followers wanted to change the world and be proactive in setting things straight. They wanted to tamper, orchestrate, plan, educate, develop, and propose solutions...Confucians think they can engineer reality, understand it, name it, control it. But the Daoists think that such endeavors are the source of our frustration and fragmentation [because such acts create imbalance]...They believe the Confucians create a gulf between humans and nature, that weakens and destroys us (49). The differing historical contexts of Aztec and Chinese philosophies explain their contrasting attitudes toward societal institutions. As noted earlier, unlike Mexica philosophy, Taoism was not isolated from other schools of thought, and thus it was subject to influences from other philosophies, especially Confucianism. Here, disagreement with the perceived excess of Confucian order and rules fueled the Taoist disapproval of government and other societal institutions (which were often led by Confucians). Hansen describes this sociopolitical stance as resembling “anarchism, pluralism, [and/or] laissez faire government,” which markedly contrasts with the active role of the tlamatinime in the Mexica government (50). Since Taoists sought to avoid entanglement in government and politics, Confucians eventually dominated China’s educational and legal systems. However, Taoism did not become irrelevant in Chinese society; the Neo-Confucian ideology of later dynasties integrated Taoist metaphysical influences with Confucian ethics (51). Taoist philosophy also impacted Chinese intellectual culture and aesthetics, as seen in Taoist contributions to various subjects, such as martial arts, meditation (52), astronomy, mathematics (53), medicine (54), art, and poetry (55). On a larger scale, Taoism played a role in revolutionizing world history; inventions including gunpowder, printing, and the compass trace back to Taoist thinker-scientists’ experimental efforts to understand the nature of the Tao (56). III. Conclusion If brought together into a philosophical discussion today, the Aztec tlamatinime and Taoist sages would likely agree on many metaphysical and ethical ideas. The Mexica focus on Teotl and duality is remarkably similar to the Taoist conception of the Tao and yin-yang , as both philosophies see the universe as a dialectical polar monism. With this shared metaphysical outlook, the two schools of thought concur that balance and moderation enable humans to lead moral, virtuous lives. However, in discussions on the practical applications of philosophy—such as the pros and cons of government—the tlamatinime and Taoist thinkers would likely diverge in their views. Imagining this theoretical discussion between tlamatinime and Taoists provides us with some insight into the nature of humanity. Though people may appear to be divided by dichotomies—Western/non-Western, liberal/conservative, rich/ poor, male/female, tlamatinime /Taoist—humankind is ultimately one, similar to the metaphysical conception of the universe as a dialectical polar monism. When looking at the bigger picture, this similarity between the human world and the abstract metaphysics of the universe also reflects the oneness between the existence of humanity and the universe we live in. Endnotes 1 Castillo Bernal Díaz del, and John Ingram Lockhart, The Memoirs of the Conquistador Bernal Diaz Del Castillo , (London: J. Hatchard and Son, 1844), 219. 2 Mann, Charles C., 1491: New Revelations of the Americas Before Columbus , (New York: Alfred A. Knopf, 2005), 121-123. 3 Scharfstein, Ben-Ami, “The Western Blindness to Non-Western Philosophies,” The Paideia Archive: Twentieth World Congress of Philosophy , No. 1 (1998): 102-108, DOI: 10.5840/wcp20-paideia19985122. 4 Mann, Charles C., 1491: New Revelations of the Americas Before Columbus , 123. 5 Phillips, Charles M., and David M. Jones, “Many Types of Blood Offering,” in The Illustrated Encyclopedia of Aztec & Maya: The History, Legend, Myth and Culture of the Ancient Native Peoples of Mexico and Central America , (London: Hermes House, an imprint of Anness Publishing, 2010), 58-59. 6 Morgan, John D., Pittu Laungani, and Stephen Palmer, Death and Bereavement Around the World: Death and Bereavement in the Americas , Vol. 2, (Amityville: Baywood Publishing, 2003), 75-76. 7 Maffie, James, “Aztec Philosophy,” in Internet Encyclopedia of Philosophy, (Martin: University of Tennessee at Martin, 2005), https://www.iep.utm.edu/aztec/. Accessed May 2019. 8 León-Portilla Miguel, Earl Shorris, Sylvia Shorris, Ascensión H. de León-Portilla, and Jorge Klor de Alva José, In the Language of Kings: An Anthology of Mesoamerican Literature, Pre-Columbian to the Present , (New York: W. W. Norton & Co., 2002), 146. 9 Ibid, 146. 10 Maffie, “Aztec Philosophy.” 11 Mann, Charles C., 1491: New Revelations of the Americas Before Columbus , 122. 12 Maffie, “Aztec Philosophy.” 13 León-Portilla, Miguel, et al., In the Language of Kings: An Anthology of Mesoamerican Literature, Pre-Columbian to the Present , 146. 14 Mann, Charles C., 1491: New Revelations of the Americas Before Columbus , 122. 15 Maffie, “Aztec Philosophy.” 16 Ibid. 17 Markman, Peter T., and Roberta H. Markman, Masks of the Spirit: Image and Metaphor in Mesoamerica , (Berkeley: University of California Press, 1994), 89-90. 18 “Life-Death Figure,” sculpture, 900-1250 AD, Brooklyn Museum, https://www.brooklynmuseum.org/ opencollection/objects/118927. Accessed May 2019. 19 Maffie, “Aztec Philosophy.” 20 “Cabeza de La Dualidad,” sculpture, 500-800 AD, Museo Nacional de Antropología, http://mediateca. inah.gob.mx/islandora_74/islandora/object/objetoprehispanico%3A20534. Accessed December 2020. 21 “Life-Death Figure.” 22 Maffie, “Aztec Philosophy.” 23 Ibid. 24 Phillips, Charles M., and David M. Jones, “Wise Governance, Strict Punishment,” in The Illustrated Encyclopedia of Aztec & Maya: The History, Legend, Myth and Culture of the Ancient Native Peoples of Mexico and Central America , (London: Hermes House, an imprint of Anness Publishing, 2010), 108. 25 Mann, Charles C., 1491: New Revelations of the Americas Before Columbus , 121. 26 Reagan, Timothy G., Non-Western Educational Traditions: Alternative Approaches to Educational Thought and Practice , (Mahwah: Taylor and Francis, 2005), 103. 27 Tuck, Jim, “Nezahualcoyotl: Texcoco’s Philosopher King (1403–1473),” Mexconnect, 2008, https://www. mexconnect.com/articles/298-nezahualcoyotl-texcoco-s-philosopher-king-1403%e2%80%931473. Accessed May 2019. 28 Lee, Jongsoo, The Allure of Nezahualcoyotl: Pre-Hispanic History, Religion, and Nahua Poetics , (Albuquerque: University of New Mexico Press, 2015), 120. 29 Ibid, 120. 30 Mann, Charles C., 1491: New Revelations of the Americas Before Columbus , 123. 31 Liu, Zehua, “The Contending Among the Hundred Schools of Thought During the Warring States Period and the Development of the Theory of Monarchical Autocracy,” Chinese Studies in Philosophy, No. 1 (1990): 58–87, DOI: 10.2753/csp1097-1467220158. 32 Hansen, Chad, “Daoism,” in Stanford Encyclopedia of Philosophy , (Stanford: Stanford University, 2003), https://plato.stanford.edu/entries/daoism/. Accessed May 2019. 33 Ibid. 34 Ibid. 35 Kohn, Livia, Daoism Handbook , (Leiden: Brill, 2004), 643. 36 Laozi, and Arthur Waley, The Way and Its Power: Lao Tzu’s Tao Te Ching and Its Place in Chinese Thought , (New York: Grove Press, 1997), 30. 37 Ibid, 30. 38 Hansen, Chad, “Daoism.” 39 Zhuangzi, and James Legge, “The Great and Most Honoured Master,” Zhuangzi Chinese Text Project, (Cambridge: Harvard-Yenching Institute, 2006), https://ctext.org/zhuangzi/great-and-most-honoured-master. Accessed May 2019. 40 Littlejohn, Ronnie, “Daoist Philosophy,” in Internet Encyclopedia of Philosophy, (Martin: University of Tennessee at Martin, 2015), https://www.iep.utm.edu/daoism/. Accessed May 2019. 41 Laozi, and Arthur Waley, The Way and Its Power: Lao Tzu’s Tao Te Ching and Its Place in Chinese Thought , 2. 42 Maxwell, Gregory, “Yin-Yang,” Wikipedia Commons, 2005, https://upload.wikimedia.org/wikipedia/ commons/1/17/Yin_yang.svg. Accessed May 2019. 43 Florimond, Joseph, duc de Loubat, and Ancient Americas at LACMA, “Codex Magliabecchiano (Loubat 1904, Page 5 Verso),” Foundation for the Advancement of Mesoamerican Studies, 2013, http://www.famsi.org/research/ loubat/Magliabecchiano/page_05v.jpg. Accessed December 2020. 44 Maffie, James, “Weaving the Aztec Cosmos: The Metaphysics of the 5th Era,” Mexicolore, 2011, https:// www.mexicolore.co.uk/aztecs/home/aztec-philosophy. Accessed May 2019. 45 Maxwell, Gregory, “Yin-Yang.” 46 Florimond, Joseph, duc de Loubat, and Ancient Americas at LACMA, “Codex Magliabecchiano (Loubat 1904, Page 5 Verso).” 47 Laozi, and Arthur Waley, The Way and Its Power: Lao Tzu’s Tao Te Ching and Its Place in Chinese Thought , 15. 48 Ibid, 15. 49 Littlejohn, Ronnie, “Daoist Philosophy.” 50 Hansen, Chad, “Daoism.” 51 Berthrong, John H., “Neo-Confucian Philosophy,” in Internet Encyclopedia of Philosophy, (Martin: University of Tennessee at Martin, 2005), https://www.iep.utm.edu/neo-conf/. Accessed May 2019. 52 Hansen, Chad, “Daoism.” 53 Camilli, Joseph A., “Taoism: The Exploration of Philosophy and Religion in a Chinese Cultural Context,” Chinese History, (Milwaukee: Marquette University Klinger College of Arts and Sciences, 2002), https://academic. mu.edu/meissnerd/camilli.html. Accessed May 2019. 54 Little, Stephen, and Shawn Eichman, Taoism and the Arts of China , (Chicago: Art Institute of Chicago, 2000), 13-14. 55 Chang, Chung-Yuan, Creativity and Taoism: A Study of Chinese Philosophy, Art and Poetry , (New York: Harper and Row, 1970), 8-177. 56 Little, Stephen, and Shawn Eichman, Taoism and the Arts of China , 47. Bibliography Berthrong, John H. “Neo-Confucian Philosophy.” In Internet Encyclopedia of Philosophy . Martin, TN: University of Tennessee at Martin, 2005. Accessed May 2019. https://www.iep.utm.edu/neo-conf/. Cabeza de La Dualidad . Sculpture. 500-800 AD. Museo Nacional de Antropología. Accessed December 2020. http://mediateca.inah.gob.mx/islandora_74/is- landora/object/objetoprehispanico%3A20534. Camilli, Joseph A. “Taoism: The Exploration of Philosophy and Religion in a Chinese Cultural Context.” Chinese History. Milwaukee, WI: Marquette University Klinger College of Arts and Sciences, 2002. Accessed May 2019. https://academic.mu.edu/meissnerd/camilli.html. Castillo Bernal Díaz del, and John Ingram Lockhart. The Memoirs of the Conquistador Bernal Diaz Del Castillo. London: J. Hatchard and Son, 1844. Chang, Chung-Yuan. Creativity and Taoism: A Study of Chinese Philosophy, Art and Poetry. New York, NY: Harper and Row, 1970. Florimond, Joseph, duc de Loubat, and Ancient Americas at LACMA. “Codex Magliabecchiano (Loubat 1904, Page 5 Verso).” Foundation for the Advancement of Mesoamerican Studies , 2013. Accessed December 2020. http://www. famsi.org/research/loubat/Magliabecchiano/page_05v.jpg. Hansen, Chad. “Daoism.” In Stanford Encyclopedia of Philosophy . Stanford, CA: Stanford University, 2003. Accessed May 2019. https://plato.stanford.edu/entries/daoism/. Kohn, Livia. Daoism Handbook. Leiden: Brill, 2004. Laozi, and Arthur Waley. The Way and Its Power: Lao Tzu’s Tao Te Ching and Its Place in Chinese Thought . New York, NY: Grove Press, 1997. Lee, Jongsoo. The Allure of Nezahualcoyotl: Pre-Hispanic History, Religion, and Nahua Poetics. Albuquerque, NM: University of New Mexico Press, 2015. León-Portilla, Miguel, Earl Shorris, Sylvia Shorris, Ascensión H. de León-Portilla, and Jorge Klor de Alva José. In the Language of Kings: An Anthology of Mesoamerican Literature, Pre-Columbian to the Present . New York, NY: W. W. Norton & Co., 2002. Life-Death Figure . Sculpture. 900-1250 AD. Brooklyn Museum. Accessed May 2019. https://www.brooklynmuseum.org/opencollection/objects/118927. Little, Stephen, and Shawn Eichman. Taoism and the Arts of China . Chicago, IL: Art Institute of Chicago, 2000. Littlejohn, Ronnie. “Daoist Philosophy.” In Internet Encyclopedia of Philosophy. Martin, TN: University of Tennessee at Martin, 2015. Accessed May 2019. https://www.iep.utm.edu/daoism/. Maffie, James. “Aztec Philosophy.” In Internet Encyclopedia of Philosophy. Martin, TN: University of Tennessee at Martin, 2005. Accessed May 2019. https:// www.iep.utm.edu/aztec/. Maffie, James. “Weaving the Aztec Cosmos: The Metaphysics of the 5th Era.” Mexicolore, 2011. Accessed May 2019. https://www.mexicolore.co.uk/aztecs/home/aztec- philosophy. Mann, Charles C. 1491: New Revelations of the Americas Before Columbus . New York, NY: Alfred A. Knopf, 2005. Markman, Peter T., and Roberta H. Markman. Masks of the Spirit: Image and Metaphor in Mesoamerica . Berkeley: University of California Press, 1994. Maxwell, Gregory. “Yin-Yang.” Wikipedia Commons , 2005. Accessed May 2019. https://upload.wikimedia.org/wikipedia/commons/1/17/Yin_yang.svg. Morgan, John D., Pittu Laungani, and Stephen Palmer. Death and Bereavement Around the World: Death and Bereavement in the Americas . Vol. 2. Amityville, NY: Baywood Publishing, 2003. Phillips, Charles M., and David M. Jones. “Many Types of Blood Offering.” In The Illustrated Encyclopedia of Aztec & Maya: The History, Legend, Myth and Culture of the Ancient Native Peoples of Mexico and Central America . London: Hermes House, an imprint of Anness Publishing, 2010. Phillips, Charles M., and David M. Jones. “Wise Governance, Strict Punishment.” In The Illustrated Encyclopedia of Aztec & Maya: The History, Legend, Myth and Culture of the Ancient Native Peoples of Mexico and Central America . London: Hermes House, an imprint of Anness Publishing, 2010. Reagan, Timothy G. Non-Western Educational Traditions: Alternative Approaches to Educational Thought and Practice . Mahwah, NJ: Taylor and Francis, 2005. Scharfstein, Ben-Ami. “The Western Blindness to Non-Western Philosophies.” The Paideia Archive: Twentieth World Congress of Philosophy , No. 1 (1998), 102– 108. DOI: 10.5840/wcp20-paideia19985122. Tuck, Jim. “Nezahualcoyotl: Texcoco’s Philosopher King (1403–1473).” Mexconnect , 2008. Accessed May 2019. https://www.mexconnect.com/articles/298-ne-zahualcoyotltexcoco- s-philosopher-king-1403%e2%80%931473. Liu, Zehua. “The Contending Among the Hundred Schools of Thought During the Warring States Period and the Development of the Theory of Monarchical Autocracy.” Chinese Studies in Philosophy 22, No. 1 (1990): 58–87. DOI: 10.2753/csp1097-1467220158. Zhuangzi, and James Legge. “The Great and Most Honoured Master.” Zhuangzi Chinese Text Project . Cambridge, MA: Harvard-Yenching Institute, 2006. Accessed May 2019. https://ctext.org/zhuangzi/great-and-most-honoured-master. Previous Next

Schedule F And The Future Of Civil Service Protections Sasha Bonkowsky Abstract Civil service protections in the United States, such as merit-based hiring, employee tenure, and the dismissal appeal , have come under attack in recent years, most notably from former president Donald Trump’s proposed Schedule F that would strip those protections from many federal employees. Under Schedule F, thousands of federal positions would become political appointees who could be dismissed at-will. This paper examines the history and justifications for exempting positions from traditional civil-service protections, as well as the feasibility for Biden’s Office of Personnel Management to forestall Schedule F. I conclude that Schedule F would likely have negative effects on government performance and morale, but that the OPM may not be able to effectively prevent implementation of Schedule F in the event of Trump’s re-election. Throughout President Donald Trump’s administration, he frequently attacked the federal bureaucracy for what he saw as its inefficiency or refusal to enact his policies. He was elected on promises of “draining the swamp” in American government; after the 2016 election, he repeatedly attacked a supposed “deep state” of insider operatives within federal agencies and departments who were ideologically opposed to him and used their positions in the bureaucracy, from which it was hard to dismiss them, to hamstring and block his agenda. Where Trump had appointment power, such as with agency heads or other political appointees, he was quick to remove those he saw as disloyal. However, many of his attacks were limited to mere invective. In the vast American civil service comprising more than two million employees, only 4,000 of those are political appointees that the president can remove at will. And in comparison to other democracies like the UK, France, or Japan, which all have similar civil service systems,, the US actually has many more political appointees. The rest are career employees. Career civil servants are usually hired using a merit-based, competitive examination system, in which all prospective employees are given the same exam, and those meeting or exceeding a particular score are hired. Once in the federal bureaucracy—and after a probationary period of several months to a year—employees usually cannot be dismissed unless they are found to be significantly derelict in their duties, and they can appeal a firing to the Merit Systems Protection Board (MSPB), which can investigate and reinstate an employee if they have been unlawfully dismissed. There are certain exceptions to this process, known as Schedules A through E, but they are only used when the usual processes are deemed “impractical.” In October 2020, Trump signed Executive Order 13957, which would have significantly increased the number of political appointees. It created a new category of positions within the federal bureaucracy—known as Schedule F positions—that would be exempted from regular civil service hiring procedures. Instead of the examination process, the president would be able to handpick employees for positions that fell under Schedule F and dismiss them at will without worrying about an appeal to the MSPB, as the Government Accountability Office (GAO) found in its analysis of the order. President Biden repealed the executive order during his first days in office, writing that it “undermined the foundations of the civil service and its merit system principles.” But such an action is hardly permanent—after all, another future president could easily reissue the executive order. To avoid that, the Office of Personnel Management (OPM) issued a proposed rule in late 2023 that would prevent career employees from being excepted under Schedule F or a similar order. The proposed rule also stated that any employee who was reclassified as political appointee would still possess the same protections from being fired and could appeal any dismissal to the MSPB. However, it’s unclear if this proposal will take effect before the 2024 election and a possible transition of power. This paper first examines civil service protections and common exemptions—especially those for current political appointees—in more detail, before turning to the possible effects of Schedule F and attempts to block it. Data from the past 10 years of OPM rulemaking demonstrates that, on average, rules take about a year to be finalized, meaning that if this civil service rule follows the usual timeline, it may be too late to go fully into effect before a Republican president or Republican Congress could repeal it. Civil Service Exceptions The US civil service already allows certain positions to be excepted from the competitive service in five categories: Schedules A, B, C, D, and E. Typically, prospective civil service employees must take a general exam, from which the highest scorers (and those with veteran’s preference) can be selected for hiring. However, this process can be slow, and does not cover specialized knowledge that an agency might require. Positions excepted under one of these schedules can be hired without this usual examination process when it is determined that the exam would make it impractical to recruit adequate numbers of students from qualifying institutions, (under Schedule D), when urgency is required (under Schedule A), or when selecting for particular experience (under Schedule B), among others. Only one schedule deals with political appointments—Schedule C—and it functions most similarly to the proposed Schedule F. Schedule C allows excepted hiring for “positions which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials”. These are often positions like press secretaries for individual bureaus within agencies, White House liaisons, or confidential assistants to secretaries and undersecretaries. There are usually between 1,500 and 1,800 Schedule C appointments at any given time, with 1,725 at the end of the first Bush administration, 1,538 at the end of the Obama administration, and 1,566 at the end of the Trump administration. These political appointments within the civil service didn’t always exist, and like the present-day Schedule F, Schedule C was the subject of significant controversy when it was first carved out in 1956 under the Eisenhower administration. One Democratic senator decried Schedule C as “an attempt to turn the civil service into a Republican grab bag” on the Senate floor, and the Democratic Party platform of 1956 stated that the Eisenhower administration’s policies “reflect prejudices and excessive partisanship to the detriment of employee morale”. The director of the Civil Service Commission defended them in the New York Times , writing that “the American people in 1952 expected your Administration to put into effect your announced policies…it is of the most vital importance that…policy-determining officials should be subject to change with any change in political administration”. Yet despite this public criticism, the Democratic-controlled Congress passed no legislation curtailing or ending Schedule C, and presidents of both parties have made use of Schedule C’s hiring authority. Several restrictions are placed on Schedule C positions and the ways in which they can be assigned. There are no “vacant” Schedule C positions which may be filled at will by the President—instead, any Schedule C positions must be approved by the director of OPM, and OPM’s authorization for those positions is automatically revoked when an employee leaves. Additionally, when requesting Schedule C exception, the head of the requesting agency must submit a statement to OPM that the position was not created in order to detail the employee to the White House—that is, assign them to work in the White House while still being paid by their original agency. This requirement was added after a 1990 GAO report found that Schedule C appointees were being inappropriately detailed to the White House rather than performing the specified duties of their positions. Though Schedule F and Schedule C may appear similar in their creation of low-level, politically appointed positions, the proposed Schedule F category would carve out much broader exceptions to the competitive service. Schedule C restricts its exceptions to appointments of a “confidential or policy-determining” character; Schedule F would allow exceptions to the competitive service for positions of a “confidential, policy-determining, policy-making, or policy -advocating character.” Policy-making or policy-advocating are much broader terms than merely policy-determining, and their definitions are statutorily vague, meaning they could be applied to a much greater number of employees. The executive order drew its legal basis from Section 7511 of Title 5 of the US Code, which excludes employees “of a confidential, policy-determining, policy-making or policy-advocating character” from competitive examination procedures and protection from dismissal. Determination of whether an employee’s job fits these requirements are made by the President and required to be authorized by the head of OPM. This exception, however, had never been put into practice before. The effects of Schedule F implementation are unclear. The executive order was issued in late October 2020, directing that agencies should submit a list of positions that would fall under Schedule F and their reasons for selecting those positions within 90 days (on January 19, 2021). Agencies were also directed to submit petitions to the Federal Labor Relations Authority to determine whether excepted positions under Schedule F would also be excluded from collective bargaining authorities. Few agencies—15 in total, out of over 400 federal agencies—submitted information to OPM, many claiming that they needed more time. Of those, just four agencies submitted names and lists of positions for conversion: the International Boundary and Water Commission proposed converting just 5 employees of its 234, the Environmental Protection Agency proposed 579 employees of its 11,000, the Federal Energy Regulatory Commission proposed 836 of its 1,166 employees, and the Office of Management and Budget (OMB) proposed 436 of its 527 employees. One issue is these agencies are not particularly representative of the bureaucracy as a whole—the IBWC and FERC are independent commissions, and OMB is deeply embedded in the White House—and so it remains unclear exactly how many employees would be affected by a future implementation of Schedule F. However, the authors of Schedule F have definite intentions for its use and assumptions of how many employees it might affect. The executive order was largely crafted and written by James Sherk, a member of the Domestic Policy Council focusing on labor policy. In 2017, he submitted a memo entitled “Proposed Labor Reforms,” in which he argued for the possibility that “Article II executive power gives the president inherent authority to dismiss any federal employee. This implies civil service legislation,as well as other protections for federal employees, (such as preventing their dismissal for joining a union) are unconstitutional. If so, the President could issue an Executive Order outlining a streamlined new process for dismissing federal employees”. Three years later, he would see that executive order realized in the creation of Schedule F. At a panel discussion for the National Academy of Public Administration (NAPA) in 2023, he continued to argue in favor of this proposition, saying that “every federal employee should serve at the pleasure of the president”. Given the limited data submitted by agencies, there’s no set number of employees Schedule F might affect. Experts, and Sherk himself, have estimated around 50,000, although Sherk noted the number as a low estimate., In the same NAPA seminar, he said that “I think there's ways you could broaden the scope of the order…I think you could expand it beyond 50,000. Say to like, 200,000. 300,000.” Former Trump administration officials have reportedly “saved lists of previous appointees…as well as career officers they viewed as uncooperative and would seek to fire based on an executive order to weaken civil service protections”, although such lists have not been made public. But having the ability to fire employees, or doing so, doesn’t necessarily mean the administration would be able to fill the positions. The Trump administration was slower than other administrations to nominate officials to key positions, other civil servants rated Trump appointees as less competent than previous Republican administrations or career civil servants, and the Trump administration faced difficulties finding even officials to fill top-level positions. While the Trump administration was able to authorize and fill about as many Schedule C positions as previous administrations, that doesn’t necessarily mean they would be able to fill Schedule F positions given the vastly larger number of them. Besides the numerical scope of its effects, Schedule F was also defended as necessary to improve the efficiency of the federal bureaucracy. The text of the executive order itself cited “long delays and substandard-quality work for important agency projects” as part of its rationale, and stated “agencies need the flexibility to expeditiously remove poorly performing employees”. Many stakeholders that GAO interviewed acknowledged that the speed of federal hiring should be improved, and that Schedule F would streamline that process; one also told GAO that “employees in Schedule F positions should be…more motivated to quickly and effectively implement the President’s policy agenda”. Criticism of a slow-moving and unresponsive bureaucracy, in which onerous hiring procedures and strict removal protections hamstring the agencies themselves, has been long-standing. Presidents and agencies alike have bipartisanly seen problems in the hiring process and sought to reform it: the US National Performance Review in 1993 wrote that “hiring is complex and rule-bound” in the civil service; a Bush-era report from the Merit Systems Protection Board wrote in favor of reform that would “provide agencies the flexibilities they need to effectively manage” and recommended that OPM should “speed the process” of federal hiring; and the Obama administration in turn issued guidance on simplifying and overhauling the civil service hiring process. The picture is little better in terms of firing underperforming employees: it’s long been understood that civil protections reduce the power of incentives, such that employees in government see little connection between performance and job security. But Schedule F seems unlikely to accomplish these reforms in a way that benefits government performance. Several of the stakeholders which GAO spoke to said that Schedule F could make recruitment of federal employees more difficult, as potential applicants might be leery of taking a Schedule F position if they believed they could be removed after a change in administration or for other political reasons. This is in line with the theory advanced by Gailmard and Patty, which states that civil servants are incentivized to build expertise when tenure provides them the stability to make such an investment. David Lewis writes in his book The Politics of Presidential Appointments, drawing on the example of the OPM in the 1980s and 1990s, that, while “politicization helped change policy,” it came at the expense of “long-term agency capacity and reputation…experienced career professionals left the agency and it was hard to replace them [or] recruit bright young people to work in the agency.” New meta-analysis of the meritocratic civil services on government performances found that associated practices such as tenure or merit-based hiring are broadly associated with stronger government performance and lower corruption. With an eye towards a potential future reissuing of the executive order, authors conclude that “converting career employees to Schedule F and removing their civil service protections is likely to degrade government performance”. Rulemaking To Prevent the Reinstatement of Schedule F The Biden administration and Democrats more broadly share similar concerns about Schedule F’s potential impact on the federal government were it to be reinstated by Trump or another future administration. Congressional Democrats have attempted multiple times to pass bills which would prevent Schedule F’s reinstatement or add amendments blocking Schedule F to must-pass defense appropriation bills. However, their efforts have been blocked by Republicans. Bypassing the legislative method, Biden’s OPM released on September 18, 2023, a proposed rule entitled “Upholding Civil Service Protections and Merit Systems Principles,” aimed as a regulatory method to prevent future administrations from reissuing Schedule F. The rule would: allow employees moved from the competitive service to the excepted service to retain their civil service protections unless the employee voluntarily relinquishes them. redefine “confidential, policy-determining, policy-making, or policy-advocating”—the language which Sherk and the Trump White House relied on to craft the executive order—to mean only non-career, political appointees. allow employees moved from the competitive service to the excepted service to appeal the move to the MSPB. This would, in essence, cut out the heart of Schedule F: removing its legal basis and specifying that converted employees retain tenure protections, such that converting their positions to the excepted service does not make them at-will employees. OPM draws its authority to make these changes from Chapter 75 of Title 5 of the United States Code, specifically 5 U.S. Code § 7514 and 5 U.S. Code § 7504, both sections which give OPM broad discretion to regulate civil service protections for federal employees. OPM also asserts its authority based on 5 U.S.C. 1103(a)(5) and 5 U.S.C. 1302 to make specific regulations about the procedures of moving employees between the competitive and excepted service, pointing out that OPM has repeatedly exercised that authority in the past (and indeed, regulated that movement in the implementation of Schedule F). The proposed rule closed its 60-day comment period on November 17, 2023, during which time it received 4,096 comments. With the strong support of the Biden administration and the leadership of OPM behind it, the rule is expected to move forward. However, the proposed rule has been the target of criticism by Republicans and people associated with the Trump 2024 campaign—which gives OPM a potential impending deadline. Almost certainly, if Trump wins the 2024 election and the rule is not finalized by his inauguration, he will direct the OPM to drop it; and even a finalized rule could be subject to overturning by a potential Republican Congress under the Congressional Review Act. The Congressional Review Act (CRA) is a tool that Congress can use to overturn federal regulatory actions, which was enacted as part of the Small Business Regulatory Enforcement Fairness Act in 1996. The CRA requires that agencies submit finalized rules to Congress and the GAO 60 legislative days before they take effect: if Congress passes a resolution of disapproval of the rule within that time period and the President signs it, or if Congress passes such a resolution over a presidential veto, then the rule cannot go into effect. Because of the threat (and exercise) of presidential veto power, rules have been overturned under the CRA only immediately following a change in presidential administration, in 2001, 2017, and 2021. However, the deadline for finalized rules to avoid CRA review by a potentially hostile Congress or President is not just 60 days before a new president could be inaugurated (that is, late November). Congress has 60 legislative days to consider rules—and if Congress adjourns sine die during that period, the 60-day period resets in its entirety beginning on the 15th day of the new legislative session, in what’s known as a “lookback” period. In 2017, that meant that the Republican Congress was able to disapprove of rules finalized as far back as May 2016. Thus, in order to be certain that it will go into effect, OPM must finalize its rule by mid-2024. But the question is if it will be able to do so by then. In the 2023 Fall Unified Agenda, published by the Office of Information and Regulatory Affairs (OIRA), OPM specified that it is targeting April 2024 for publication of a final rule. Based on historical precedent, this would provide the rule enough time to avoid reconsideration and potential disapproval from the next Congress. But OPM’s projected timeline may be overly optimistic, given its past timelines in publishing final rules. I collected data on finalized OPM rules between 2023 and 2013 in the Federal Register and examined how long it took between publication of the proposed rule and publication of the finalized rule. Since OPM’s proposed rule at hand of upholding civil-service protections has been defined as “significant” under Executive Order 12866 (likely due to its potential to “raise novel legal or policy issues arising out of legal mandates [or] the President’s priorities”), I restricted my search to only those rules which were similarly deemed significant, as they require a full review by OIRA that lengthens the rulemaking process. I also did not include OPM rules that were issued only as interim final rules rather than undergoing a full notice-and-comment period. The full list of all OPM rules meeting these criteria and their timelines can be found in Appendix A. Below are the summarized results: FIGURE 1: OPM RULEMAKING AVERAGE TIMELINE Notes: The timeline of OPM rulemaking is defined as the number of days between OPM’s publication of a proposed rule and the publication of a final rule. Several outlier rules took more than three years to be finalized. Data sourced from the Federal Register, 2013-2023. FIGURE 2. OPM RULEMAKING TIMELINE BY YEAR Notes: OPM published no significant final rules in 2017. Data sourced from the Federal Register 2013-2023. On average, it took 473 days between OPM issuing a proposed rule and OPM issuing a final rule. Even after eliminating the major outlier rule that took nearly 6 years to finalize, the data still suggests that it generally takes over a year to finalize a rule after it is proposed. Though the timeline varies slightly year by year, there is no clear pattern that would allow us to infer that the OPM of 2023-2024 finalizes rules significantly faster or slower than the OPM of, say, 2013-2014. If this timeline holds for OPM’s rule undercutting Schedule F, we can project that OPM will finalize the rule sometime in December 2024—too late to avoid a potential disapproval under the CRA. However, one case study of similar civil-service rulemaking demonstrates that potential CRA review is not the same as certain CRA review. On September 17, 2019, the OPM under Trump issued a proposed rule that would more strictly enforce the probationary period before employees were accepted to a competitive service position and sought to streamline civil service removal procedures. In many ways, this rule was a precursor to Schedule F, drawing on the same language and reasoning about an ineffective federal government that couldn’t remove underperforming employees. The rule was finalized on October 16, 2020, a timeline which would have allowed the 117th Congress under unified Democratic control to review and disapprove it. They didn’t. It’s not entirely clear why not: congressional disapproval of rules cannot be filibustered in the Senate, and 20 days after their proposal can be discharged for a floor vote by a minority of 30 Senators. More likely, the Democratic Congress preferred to let rollback occur through the agency processes: there were only three rule disapprovals in total in 2021 of Trump-era rules, but many more were overturned by agencies’ new leaders. But that process takes time, and so it was only in November 2022 when OPM finalized its rollback, meaning the Trump-era changes were in place for almost two full years of the Biden administration. The OPM’s proposed anti-Schedule F rule would likely follow a similar track. An OPM under Trump would certainly seek to undo it, even if the rule is successfully finalized and put into effect without disapproval—but as in the case above, it would likely take them months or years to do so. A rule undoing this one would also be open to legal challenges that an executive order would not be, and the Trump administration faced significant challenges in successful rulemaking. Previous administrations succeeded in roughly 70% of challenges to agency actions, while the Trump administration had a dismal 23% success rate in legal challenges due to bypassing procedural requirements, providing incomplete analyses of policy effects, or taking action which exceeded an agency’s statutory authority. Conclusion Whether or not OPM manages to finalize its rule and put it into effect successfully, the fight over the structure and protections of the civil service is unlikely to end in 2024 or beyond. In recent years, long-held civil service practices of non-politicization and tenure protections that were largely taken as established have come under increasing attack, largely from Republican officials and presidential candidates. In recent years, it’s the executive branch which has been most involved in determining the structure of federal civil service, from the Schedule F executive order to OPM’s proposed rulemaking, and attempts for similar legislation have been blocked or stalled out before making major progress, and research has largely focused on the president’s and agencies’ influence. But Congress has historically been the instrument of major changes to the civil service, from the Pendleton Act to the Civil Service Reform Act of 1978—and it’s only recently that Congress has ceded that power to the executive. While research such as this examining the direction, scope, and timing of executive influence over civil service is certainly beneficial given the political context, one potential direction for further research could be an examination of Congress’ role in civil service in the past, and what potential legislative actions would be beneficial in future. 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Mission Statement 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. Julian D. Jacobs '19 Daniel Shemano '19 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.

How Are You the Same Person as When You Were Ten: Favoring the Brain Criterion View over Animalist and Neo-Lockean Views Henry Moon Author Matthew Wong Daniel Coffield Editors I. Introduction I am the same person as when I was ten years old—this is common intuition [1]. In another sense, as I have a different body and psychology, it seems that I cannot be the exact same person as I was when I was ten years old [2]. In this paper I ask how exactly we were the same people when we were ten. This question is equivalent to asking what the persistence conditions for “an entity of our kind” to remain the same over time: call these diachronic persistence conditions [3]. In asking this question, we ask two separate questions (1) What should “entities of our kind” refer to? (2) What are the persistence conditions for these entities? First, I review the literature regarding the two most popular theories of personal ontology, or the study of what we are. In doing so, I will then introduce the brain criterion based on egoistic concern—the special concern about one’s future that arises from anticipation of continued existence. Providing justification in ontological coherence and ethical plausibility, I submit that the brain criterion is the superior ontology. In the second half of this paper, I will be responding to objections to the brain criterion, specifically regarding persistence by considering commonplace thought experiments. As a synthesis from these objections, indeterminacy thesis and multiple occupancy will be defended as part of the paper’s overall argument. II. What Should "Entities of Our Kind" Refer To? To determine the persistence conditions for some entity, one must start by specifying exactly what that entity is. I say this because whether entities can survive events is subsequent to what the entity is. For example, a square cannot survive being stretched in one axis whereas a rectangle can, because a square is defined must have four sides of equal length. This is to say, the persistence conditions of a square are informed by its ontology. In the same way, the persistence conditions for a person depend on personal ontology. Despite this, much of the contemporary literature on personal identity seems to treat personal ontology as a secondary question. Instead, the focus has been placed upon a gamut of thought experiments [4]. To this, in "What Are We”, Eric Olson blames “the unserious air of many discussions of personal identity” on this lack of focus on personal ontology [5]. There are two dominant answers to the persistence question: neo-Lockeanism and Animalism [6]. Neo-Lockeanism is the view that we are creatures with certain psychological traits essentially [7] Animalism says we are human animals essentially; we are identical with our human bodies. Each view is associated with at least one ontology. Neo-Lockean theory most popularly claims that we are constituted by our animal bodies or that we are temporal parts of our animal body. Most neo-Lockeans would not say we survive a permanently vegetative state, despite our animal bodies being able to survive, and to a neo-Lockean, this is an example of how we differ from our animal bodies. Animalists simply state that we are our human bodies; if our bodies were to enter a permanently vegetative state, we would enter that state as well. Neo-Lockean views lack the “metaphysical leg up” that ontologically focused views like animalism have [8]. Contrastingly, animalism often ignores normative concerns [9]. Despite this trade off between normativity and ontology, when we refer to others, we do not do so as moral agents and organisms separately, but as one unified forensic unit: otherwise this would be absurd [10]. Parfit also touches on similar ideas when he sets out two requirements that a theory of personal identity must satisfy [11] : (1) Whether a future person will be me must depend only on our intrinsic properties. It cannot depend on what happens to other people. (2) Since personal identity is of great importance, whether a future person is me cannot depend on a trivial fact. Parfit also seems to segregate requirements on the basis of (1) a strict ontological concern and (2), an ethical concern. What idea we have converged upon seems to be this: an account of personal identity (and thus, ontology) must be, as Olson puts it, both “ontologically coherent as well as ethically plausible” [12] In the following sections I will forward an account of personal ontology which describes entities of our sort as a human animal under two constraints: (1) That the entity has certain traits that warrant continuous egoistic concern (2) That the entity is the spatial part of a human animal in which (1) necessarily and sufficiently obtains (i.e part of the brain) Evaluating the contemporary two main theories of personal identity, along with our own as delineated above, I will recommend this account of personal ontology to have best fulfilled the need to be ethically plausible and ontologically coherent. A. Ethical Plausibility I propose that to say an account of personal ontology is ethically plausible is to say that it reasonably includes all entities that our normative and ethical concerns refer to when we use the everyday pronouns of ‘I’, ‘you’ or ‘we’, and reasonably excludes all entities that do not. Further, if it is said that you and I are ‘entities of our sort’, we can expect that normative claims which apply to you would also apply to me. We start with cases where the brain-criterion provides for a necessary liberalization of inclusivity. First, in contrast to animalism, brain views allow for entities of our kind to survive after brain transplantation. The common intuition that follows is that after the brain is transplanted into another person’s head, the entity follows with it [13]. Animalists must maintain that because the human organism is left behind and dies during the process of transplantation, we must die along with it. This is a strikingly unintuitive statement to endorse. On the other hand, because physical continuity of the brain is maintained and is presumably enough to warrant egotist function once transplanted, the brain criterion successfully represents the intuition that we would survive after transplantation. Second, in contrast to neo-Lockean continuity, we are able to account for individuals who lack meaningful psychological-connectedness, yet we must still include them as one of us. Jeff McMahan illustrates that in cases of Alzheimer’s, neo-Lockeans seem to imply that the individual ceases to exist and becomes a sort of “post-person.” [14] This is because insofar as a case of Alzheimer’s progresses so that almost no function of memory remains, neo-Lockean theories suggest that this is a case where the psychological connection is broken, and individuals cannot survive [15]. When considering the ethical plausibility of this, we suspect that instead, we would still consider the Alzheimer’s patient an entity of our sort, and that our normative claims and duties would still apply to them. Concretely, if the Alzheimer’s patient was my mother, just because she lacks psychological connection does not mean she is not “one of us”. In contrast to the brain criterion based on egoistic concern, as long as there is brain continuity supporting the function of egoistic concern, we may say the entity is one of us. For example an Alziemer’s patient still has egoistic concerns because she considers actions not as disconnected events that will only impact an entity similar but identical to herself (and that she exists only for a brief moment before her psychological connection deteriorates) but that her actions will influence her future. Note the difference here is that egoistic concerns need not be a degree of psychological unity in which even a semblance of qualitative identity is sufficiently obtained [16]. We see this when we consider two statements, that normatively we take as non-mutually exclusive: My mother has not been the same person recently and does not remember me. That woman who does not remember me is my mother. The first statement expresses our intuition that people can change drastically, even to the point where psychological unity according to a neo-Lockean would be lost. The second statement, however, speaks to our intuition that numerical identity can survive far more liberally, when considering strict psychological relation, than a neo-Lockean claims. Indeed, the exclusionary policy of the brain criterion is the most ethically plausible. There are also cases where the brain criterion restricts cases necessarily. The main difference between neo-Lockean views and general brain-views is that the brain-criteria explicitly requires a physical contingency. This is to say, a sufficient part of the brain which is necessarily part of a living being must remain continuously. From this, we can locate cases that should be excluded, such as that where an entity can survive a total loss of body. Neo-Lockeanism generally endorse teletransportation as an event in which we can survive. Despite whatever prima facie intuitions we may have, consider you were being transported, but a replica of an entity at some point B was created while you were still alive. Thus, you are not the entity at point B, and for there to be one entity, you must have been destroyed at point A [17]. Moreover, Animalist views consider a fetus and an individual in a permanently vegetative state to also fall under our general normative conventions, as they are simply stages in the human animal’s development. Extreme views notwithstanding, common ethical norms tell us otherwise: we have intuitions that it is permissible to kill an early stage fetus, for example, where we do not for toddlers [18]. This is a difference that Animalists do not account for. This difference is crucial in ontology: we say it is permissible to kill a week-old fetus because at that point it more closely resembles an unconscious collection of cells than the entity we normatively refer to we say “you” or “I”. The ethical norms about “entities of our sort” that Animalism implies do not match our commonly held ones; thus, we cannot say an Animalist conception of persons is ethically plausible. Considering both comparisons to neo-Lockean and Animalists views, it is only by using the definition of brains with egoistic concern that we can arrive at a superior ontology. B. Ontological Coherence To say that a theory is ontologically preferable to any other is to say that it answers key issues concerning personal ontology at as little cost in way of unfortunate implications that one must accept. In evaluating the seven main personal ontologies, Olson generally considers one issue as most important: the thinking animal problem. The thinking animal problem is the following argument: (P1) Presently sitting in your chair is a human animal. (P2) The human animal sitting in your chair is thinking. (P3) You are the thinking being sitting in your chair. (C) Therefore, the human animal sitting in your chair is you. The crux of the thinking animal argument is that insofar as rejection of P1-P3 requires us to accrue the cost of, as Olson puts it, an “impenetrable” [19] ontology, we must conclude that we are human-animals. By proving that we can escape this conclusion, we can prove the brain criterion is preferable to neo-Lockean theories which fall victim to the argument. I will now defend the second constraint using a generalization of the thinking animal problem: (P1) There is a spatial part of a human currently located where you are. (P2) The spatial part currently located where you are is thinking. (P3) You are the thinking being located in your chair. (C) Therefore, the spatial part of a human where you are is you. Note that this argument is analogous to the thinking-animal-argument so that we may adopt its conclusion. The difference is that the conclusion is such that we must be spatial-parts of the brain, some that we can be essentially reduced to a part of the brain. Note that any spatial part of an animal with greater inclusivity than what is necessary for a thinking part to think will fall trap to this argument, given the animal with greater inclusivity contained a non-essential part was incorrectly considered essential. This is to say that the argument implies “you” are identical to infinite smaller spatial-parts unless “you” refers to the smallest possible spatial-part of an animal which thinks. This smallest possible part is the only part that is not affected by the argument since, any less inclusive and the animal loses the property of thinking, so P2 falls, making the argument inapplicable. Dualist theories notwithstanding, this smallest spatial-part of a thinking animal must refer to some part of the brain, and so we have proven our second constraint on animalism. To conclude, this makes animalism and the brain criterion at least equal in ontological coherence, which combined with a brain criterion advantage in ethical plausibility allows us to recommend over the other theories. III. What Should “Entities of Our Kind” Refer To? Given we have answered first question of this paper, there are two main objections specifically to how the brian criteria persist : 1. That the brain-criterion is unnecessary and insufficient 2. That the brain-criterion is necessary but insufficient In this section, I will deal with both of these objections, and in doing so maintain that Brain Criterion is both sufficient and necessary. A. Unnecessary and Insufficient Parfit’s “combined spectrum” shows that any account based on “empirical fact” will have cases of indeterminate identity [20][21]. This is because any empirical criteria, such as psychological or physical continuity operate on a spectrum of absolute similarity to no similarity. If that is true, then there are cases on that spectrum where it seems that the connectedness between two entities is indeterminate to whether they are the same entity. Consider our brain criterion: existence is guaranteed in the case of 100% paradigmatic brain-function, and guaranteed false in the case of no function. However, there are cases in-between whereby it is indeterminate that consciousness is present: it is hard to see an argument for consciousness given 2% function, but what of 12% or 24%? There are two possible conclusions we can make of this: That indeterminacy cannot exist, and so some “further-fact” must be considered [22]. Or, we must allow for cases where indeterminacy arises. If we accept the consideration of a “further fact” in indeterminate cases, this implies the same further fact could determine the answer to the persistence question in any other case. What rejecting cases of indeterminacy entails is accepting a “further fact” ontology, such as immaterialism. I will comment that even if we cannot assuage the issue of indeterminacy, it may be preferable than to contend with the burden of proving dualism and other theories associated with immaterialism. In our paper’s defense of the brain criterion, indeterminacy would not mitigate claims that it should be recommended over animalism or neo-Lockean views –– both rely on empirical criteria. Yet as a foundational argument, I will contribute a defense of indeterminacy. Note that indeterminacy in things other than the existence of people is uncontroversial and common, for example, given a tallness spectrum where 7ft is guaranteed to be tall and 4ft guaranteed not to, there must be indeterminate cases of tallness in between. However, indeterminacy seems to be unreasonable when it comes to issues of persistence. Bernard Williams provides a thought experiment where one has to imagine that entity X, which is indeterminately identical to me, will be tortured tomorrow if indeterminacy is true. Does it follow that the feeling of great pain will be indeterminately felt by me? Noonan points out that this merely illustrates the “very great unnaturalness of this way of thinking” that is present in these cases, not that the cases themselves are unnatural [23]. Note then because it must be accepted that indeterminacy exists in other contexts, we must simply prove that indeterminacy in persistence is also acceptable. Many metaphysical arguments have been offered to this end; I will propose a practical one: to assume that issues of persistence must have determinate answers where other reducible substances do not is to assume there is something irreducible about selves. This begs the question on whether there selves are reducible in the first place, and thus we have no reason to reject indeterminacy in persistence. B. Necessary but Insufficient A hemispherectomy is a procedure where one half of the cerebrum is removed. Despite having half their brain removed, patients that undergo hemispherectomy expect to survive the operation. Our intuitions indicate they have good reason to make this assumption: we treat postoperative entities as the same people, and indeed, as their brain hemisphere adapts to serving the role of two, often cognitive function is returned as well [24]. In other words, if I receive a hemispherectomy, theoretically there seems to be enough brain continuity so that the resulting person is me. However, the reality is that whether you survive is indeterminate. If the brain criterion is necessary and sufficient in the light of indeterminacy, we must prove that for all conclusions that could be made, but are unobservable, there is still ethical plausibility and ontological coherence. If I end up in surgery or even if it is indeterminate that surgery kills me, the discussion ends here. Things are more complicated if you survive. Given that we can accept the transplantation of the cerebrum while maintaining continuity, it can be said that transplanting half of a brain also continues the entity. However, in a case there are two candidates, both sharing physical continuity of a human animal in which egoistic concern is retained, it seems that the brain criterion is insufficient to prove persistence which entity persisted. There are three interpretations to this case [25]. (a) I do not survive. (b) I survives as either candidate-A or candidate-B (c) I survive as both First consider (a), commonly referred to as the “non-branching view” [25]. Notice that I would survive if one half was destroyed, but in the case of both being preserved, I die. This seems immediately strange: How is double success considered a failure? Given the symmetry of the problem, (b) is incoherent as well, considering facts about both candidates are equal. We must then turn to (c), the only case in which brain continuity is sufficient. To avoid implicating that candidates A and B are the same, I forward that candidates A and candidates B are distinct entities that were once spatially coincident within the original, or multiple occupancy[26]. Given that either (a) or (b) are both untenable, the implication is that if one wants to reject “further fact” accounts, multiple occupancy must be endorsed [27]. Two things must be proven for us to adopt this: It does not affect the ethical plausibility of the theory It does not affect the ontological coherence of the theory If these two requirements are met, we will have a theory that sans fission preserves our original account and considering fission, will have the most realistic account in approaching it. C. Ethical Plausibility Let us first consider ethical plausibility. Firstly, given that pre-fission agents are unified, there is no change from our original theory. Moreover, the fact that an entity undergoes fission later down the road would not retrospectively change the normative considerations we give to the pre-fission entity. Does our criterion provide the most ethically plausible account of entities post-fission? Consider your spouse undergoing the fission operation. We may measure the ethical plausibility by considering how each post-fission theory affects your duties to your spouse. If (a) is true and whether your spouse lives if there is no second transplant but dies if fission takes place, if there is a gap in time between when half your spouse’s cerebrum is removed, and when it is transplanted into a host body, do you have marital duties toward your spouse during that gap where the second transplantation did not occur, but that these duties disappear the second the operation is successful? That our duty to people should be as arbitrary as the existence of another person seems strange. Strange conclusions are also reached when (b) is considered – why would you have the martial duty to love and be faithful to one of your spouse candidates and no qualms abandoning the other? If we maintain that it is immoral to abandon our duties on arbitrary facts, so (b) is also not a viable conclusion. (c) is the only scenario which is compatible with our conventional moral ideas. Yet it is also true that our commitments to our spouse are not exactly the same: they are, in a way, inflated. I must now commit to caring and providing for two bodies instead of one, being affectionate and loving to two bodies instead of one. However, while our duties to our spouse now split between two people is a commitment that is inflated, it is inflated based upon ideas we already accept as a posteriori moral—compare this to duties suddenly appearing and disappearing based on arbitrary facts. Consider a situation where your spouse is experiencing a mental health crisis. As a result of going through this situation, it is your duty to be more sensitive around them, spend more time and energy tending to their care etc—in other words, your commitment has been inflated. However, we accept this as a natural part of our duty because we hold a duty to a loved one in a difficult situation, despite having our commitments inflated. In the same way, our duties to a spouse do not change on account of this strange situation happening to them; duty is not situational. This is the principle that only multiple occupancy can reach, given all other seniors change duty based on the arbitrary details. Thus, being that it would be most accurate to say you have a duty to both, multiple occupancy is the most ethically plausible interpretation. What may be suspect is the impact on personal ontology. Multiple occupancy does not affect the arguments for ontological coherence we have laid out before if committing to its thesis does not require committing to additional burdens. We may prove this by considering each ontological assumption that our original theory could operate under and prove how multiple occupancy is compatible with the original metaphysical assumptions. Thus, if each assumption that is compatible with our original theory is also compatible with multiple occupancy, we can say that the original theory’s ontological coherence was not affected. There were two metaphysical assumptions we could make in which our account of personal ontology retained: that four dimensionalism was true, and that four dimensionalism was false. Under the assumption of four dimensionalism, the two separate entities after the fission operation are just temporal parts of the original entity that simply stand spatially distinct. This stands unproblematic among thinkers who accept four dimensionalism [29]. However, we require an account with the original metaphysical assumptions free of four-dimensionalism. Note that multiple occupancy seems absurd because common sense counting would suggest that 1 person becomes 2 people. We may resolve this by suggesting that it is possible to count 2 people before the fission operation as well. Before the operation, a singular entity is counted because counting was done by “spatio-temporal coincidence” rather than counting by identity [30]. This itself is also acceptable: if we can say that we can be identical to some entity that is not spatio-temporal coincident with us, as we do in everyday language when we say “my past self" or my “future self,” we are saying that identity and spatio-temporal coincidence represent two different things. Thus, given multiple occupancy can be integrated within either framework without necessitating a revision of our fundamental metaphysical assumptions, we can say it has not impacted the ontological coherence of the original theory. When we consider that both the ethical plausibility and ontological coherence has been preserved, while multiple occupancy is highly counter-intuitive, it must be accepted. IV. Conclusion In answering how we are the same person as when we were ten, I have considered two important questions in personal identity: what “we” are, which is a question of personal ontology, and how "we" persist. I have evaluated the merits of the brain criterion based on egoistic concern against both Animalism and Neo-Lockeanism, arguing that it is this paper’s variant of the brain criterion which best encompasses both ethical and ontological considerations when answering what “we” are. Then, I have argued that the persistence criteria which follow from the proposition that we are brains is necessary and sufficient, on the basis that one rejects a further fact ontology. What follows is the question of multiple occupancy, which seems quite counter intuitive when considering prima facie. However, multiple occupancy as I have proven, remains the only solution to deal with the cases of fission satisfyingly. Footnotes [1] Francisco Muñoz et al., “Spatio-Temporal Brain Dynamics of Self-Identity: An EEG Source Analysis of the Current and Past Self,” Brain Structure and Function 227, no. 6 (2022): 2167–79, https://doi.org/10.1007/s00429-022-02515-9 . [2] There is quite a lot of unintended semantic conflation in discussions of personal identity. Even the label by which we refer to it almost assumes person essentialism. When I use the term “person”, I refer to the colloquial usage, not the neo-Lockean kind, unless explicitly stated. Moreover, in usages where “person” may be easily conflated, I have substituted the more neutral “self” or “selves”. This is why I refer to the persistence questions with the set of rather than . Most clearly neutral is the term “entities of our sort”, which I have tried to use most often, but selves serves the same purpose with less of a word count cost. [3] Harold W. Noonan, Personal Identity (London: Routledge, 2019), 85-86 [4] David Shoemaker and Kevin Tobia, “Personal Identity,” The Oxford Handbook of Moral Psychology, 2022, 542–63, https://doi.org/10.1093/oxfordhb/9780198871712.013.28, 9. [5] Eric Todd Olson, What Are We?: A Study in Personal Ontology (Oxford: Oxford University Press, 2007), v. [6] David Shoemaker and Kevin Tobia, “Personal Identity” [7] Eric T. Olson, “Personal Identity,” Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/identity-personal [8] David Shoemaker and Kevin Tobia, “Personal Identity,” [9] Ibid [10] Marya Schechtman, Staying Alive: Personal Identity, Practical Concerns, and the Unity of a Life (Oxford: Oxford University Press, 2017), 49-56 [11] Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1987), 267. [12] Gendler, Tamar Szabo and Olson, Eric T, The Human Animal. (Philosophical Review, 1999) [13] Nichols, Shaun, and Michael Bruno. “Intuitions about Personal Identity: An Empirical Study.” Philosophical Psychology 23, no. 3 (2010): 293–312. doi:10.1080/09515089.2010.490939. [14] Jeff McMahan, The Ethics of Killing: Problems at the Margins of Life (New York: Oxford University Press, 2003), 47 [15] Lukas J Meier. “Memories without Survival: Personal Identity and the Ascending Reticular Activating System” The Journal of Medicine and Philosophy, no.5 (2023): 478–491. https://doi.org/10.1093/jmp/jhad028 [16] Two things are qualitatively identical if they share all their properties, and numerically identical if they are not two, but one. [17] McMahan, The Ethics of Killing: Problems at the Margins of Life, 57 [18] Steinbock, Bonnie. “Abortion.” The Hastings Center, February 22, 2024. https://www.thehastingscenter.org/briefingbook/abortion/ . [19] Olson, What Are We?: A Study in Personal Ontology, 214. [20] Noonan, Personal Identity, 18 [21] Parfit, Reasons and Persons, 236 [22] Parfit, Reasons and Persons, 210 [23] Noonan, Personal Identity, 191 [24] Noonan, Personal Identity, 5 [25] Parfit, Reasons and Persons, 248 - 253 [26] Noonan, Personal Identity, 18 [28] Noonan, Personal Identity, 140 [29] Olson, “Personal Identity” [30] Noonan, Personal Identity, 139

Moral Manipulation A Kantian Take on Advertising and Campaigning Sylvia Gunn The Australian National University Author Ebba Brunnstrom Grace Engelman Matthew Flathers Editors Fall 2018 Kantian moral philosophy applied to appeals to emotion in advertising and campaigning; analysis, comparison and critique. The ethics of manipulation are important for anyone whose goals rely on changing people’s behavior, but who do not wish to violate moral laws. Kant’s emphasis on avoiding the violation of others’ humanity makes his philosophy particularly applicable to this topic. Although Kantian philosophy tells us that lying is immoral, the status of appealing to animal instincts is unclear. This essay will define a common maxim to describe these appeals in advertising and campaigning, and analyze this maxim under each formulation of Kant’s categorical imperative. Previous work has considered the ethics of advertising, Kantian and otherwise, without making the comparison to campaigning. This article will shine further light on the importance of understanding the value of emotion in Kantian philosophy, rather than rejecting appeals to emotion entirely. Kantian philosophy requires that we define a maxim to describe the action, and its context, and its intention, in order to analyze an agent’s choice and its moral implications. This essay takes ‘appeals to emotion’ and ‘appeals to animal nature’ to refer to the same behavior, namely the use of persuasive techniques to create an instinctual or emotional response in our target, rather than a purely rational response. In the Kantian sense, rationality refers to one’s deliberate actions, which can take into account emotions, higher order desires, and moral considerations. The examples of advertising and campaigning will aid in this discussion. To avoid consideration of a ‘cool-off period’ during which the emotional response might wear off or be rationally processed, we will assume that the target can act immediately in response to the appeal. The advertiser wishes to convince people to buy their product or service, and uses appeals to serve this purpose. For example, an insurance salesperson might appeal to fear, recounting tales of disasters to compel potential customers to buy the most comprehensive plans. Alternatively, a company may use associative advertising, which involves portraying someone who uses the product or service as happy, successful, or otherwise benefitted, without explicitly claiming that the product creates this result. Conversely, the campaigner may make an appeal to empathy, displaying images of starving children in order to compel potential supporters to donate. The maxim, in both cases, is “Where it serves my purpose, I will make an appeal to my target’s animal instincts, to encourage them to do what I want”. In order to determine whether my maxim is permissible in Kant, we shall put it through all three formulations of the categorical imperative in the Groundwork to the Metaphysics of Morals. The categorical imperative is intended to be a universal concept of morality, acceptable to all moral beings. Kant claims that there is “only a single categorical imperative”[1] which is the formula of universal law. The other formulations, that of humanity and that of the kingdom of ends, are alternative ways of spelling out the same moral ideals. Each provides guidance, particularly when maxims are vague and manipulable, or when some formulation does not produce clear results. The first half of this essay analyses the maxim under Kant’s three formulations, concluding that appeals are only ethical in the Kantian sense when there is a certain degree of certainty that the target knows that those appeals are occurring. The first formulation, the formula for universal law, tells us that maxims are only acceptable if it would be possible and acceptable for them to become universal law. According to this formula, emotional appeals are not wholly unacceptable, but they may in some cases interfere with my other ends. The second formulation, the formula for humanity, tells us that one must never violate another’s autonomy or rational capacity. Thus, appeals are only acceptable if my target is aware of their occurrence. Finally, the third formulation, the kingdom of ends, requires me to act on the expectation that others are generally rational, although they can be temporarily overcome by emotion. Thus I should make appeals only when the context makes it clear that appeals are occurring – such as in advertising slots. Moreover, in situations where I can gauge whether the person is engaging rationally, I need not exercise the same caution before the appeal is made. This implies that direct interactions, such as campaign conversations, may allow for stronger appeals to emotion than broadcast communications such as adverts. This does not draw out a clear distinction between the use of appeals in advertising and their use in campaigning, but it does give both campaigners and door-to-door salespeople some extra scope. The second section of this essay discusses two issues with this conclusion. Firstly, it fails to distinguish between appeals to harmless emotions and emotions that reflect harmful societal norms. Secondly, it does not take into account the larger good consequences of an action, particularly relating to campaigning. These objections constitute a rejection of Kantian philosophy, which does not allow for any sacrifice of human rationality for the greater good, in favor of a pluralist philosophy. Rather than a weakness, this second objection could describe a strength of Kantian philosophy: it provides a framework for a theory of slow and sure social change, which does not rely on human’s animal instincts, but only their rationality. Existing Literature Philips considers the question of emotionally manipulative advertising in relation to multiple ethical frameworks and concludes that the Kantian perspective would rule it out. His consideration of the formula of universal law finds that you should not engage in manipulative advertising that would work on you, as the universalization of this maxim would see you manipulated, which conflicts with your other ends. Interpreting Kant’s formula for humanity to mean that one must not override the will by appealing to emotion, he initially finds that his maxim does not treat humanity as an end in itself. He then provides a reshaped maxim that characterizes appeals as an argument that the target engages with rationally. To Phillips, it is unclear which of these maxims is correct under the Kantian account.[2] My account, in contrast, will apply Kantian moral psychology to appeals, incorporating the target’s engagement with the appeal. Partially because of this, and partially because my maxim only includes appeals that will work to some extent if the target is aware of its occurrence, my conclusion is different from Phillips' version. In contrast, Phillips’ maxim includes subliminal messaging, which works exclusively when the target does not know that they are occurring. Kant addresses some related topics that aid the discussion of this question, without directly addressing the issue at hand. These examples provide context to the question, and allow for assessment of our interpretation of Kant. If an interpretation changes the conclusions that we have already accepted, that interpretation is not hugely accurate to the original ideas. Beyond that, Herman’s perspective on interpretations is a good guide: it is enough to argue that one can [interpret it that way]. The rest should be decided by the fruitfulness of the concept.’[3] Rather than try to find the opinion that Kant would have held, particularly considering that his views on many issues were inconsistent with his philosophy,[4] we should develop an interpretation based on the parts of Kant’s philosophy that we accept. Kant’s discussion of the false promise finds it immoral under each formulation of the categorical imperative. The maxim ‘[I will,] when hard pressed, make a promise with the intention not to keep it’ is not universalizable, as it would not be possible if everybody applied it by law, and everyone thus became aware that promises held no value.[5] Moreover, it violates the target’s humanity on two counts. Firstly, they are unable to give or withhold consent to the lie, and secondly, they would not agree to the promise if they knew it were a lie. Deception is comparable but not equivalent to appeals to animal instinct, which can involve deception of the will. If levels of manipulation can be placed on a scale, depending on the extent that informed choice is taken from the target, the lying promise is a well-defined immoral upper bound. Kant’s discussion of our duties towards animals and children are also relevant to this discussion; they give insights into our treatment of irrational actions. Rather than interacting with less rational beings, my maxim involves appealing to the less rational instincts within rational beings. In doing this, we should acknowledge that people have different capacities for rationality. In relation to animals, one’s duty is to avoid unnecessary mistreatment, but this is primarily to protect our own moral senses. Some interpretations of Kant have expanded on these duties based on animals’ partial rationality.[6] It is also acceptable to treat children and the mentally impaired differently from fully rational adults, but with more restrictions again, noting their partial or changing levels of rationality. In valuing rationality, we should promote and enhance the rationally of such beings,[7] without holding them as responsible as we do fully rational adults. The Formula for Universal Law According to Kantian analysis, there is no perfect duty against the maxim of appeal to emotion. A perfect duty exists against a maxim where it would not be possible to will it if it were universal law.[8] Although the concept of a maxim being universal law is contested, it essentially means that any rational agent who found themself in the same context with the same intention would perform the same action. Unlike in the example of the lying promise explained above, appeals to animal nature can still be effective even when people are aware that they might be occurring, and even when people know for sure that they are happening. In our insurance advertising example, awareness of an emotional argument does not dissipate our fear that the same disasters could befall us. Knowledge that an appeal is occurring makes us more critical of the appeal in the same way that knowledge of a news publication being biased will make us more critical of the way it presents the facts. Thus, the maxim may be less likely to make the target do what I want if the maxim is universalized, but it will still encourage them. For example, a rational response to an associative advertisement for perfume would be to acknowledge that the positive emotions evoked might make me enjoy the product more, allowing this to influence my decision to buy it, along with the actual smell of the perfume, its price and my perception of the company. Universalization of my maxim would weaken its effect, but allow it the same meaning and similar result. Whether there is an imperfect duty against this maxim is indeterminate. The imperfect duty exists where the establishment of my maxim as universal law conflicts with my other end(s). A world where people, as universal law, appeal to animal instinct rather than rationality whenever it suits them could inhibit the realization of one’s other ends in a range of ways. The most obvious of these is if others used the appeals to change my behavior and in the process abandon my original ends. Phillips argues that this would only rule out making appeals that I know would work on me, which would not make for universal moral duty between different people.[9] However, this interpretation simplifies universalization, which would be a rather complex process. As Rawls argues, the formula for universal law creates an “adjusted social world” wherein agents practice such appeals as though it is inherent to their nature.[10] The existence of such a social world could involve a range of things, depending on how the idea of universal law is understood. At one extreme, we would not be able to tell when we ourselves are making these appeals, and they thus would be almost unrecognizable when others were making them to us. This would make us more susceptible to them and thus more likely to be swayed against our will. The opposite extreme, that we are aware of these appeals but still unable to stop ourselves from making them, would have different implications. The appeals would still work in some cases, but they would presumably fail whenever they were not adequately appealing to the will, which would be aware of the appeals, and decide rationally to accept them on the basis of emotional desires. However, the best interpretation seems to be somewhere in between these: although we would recognize these appeals sometimes, we would not understand them well enough to always recognize them. If this maxim were to be taken as a universal law like gravity or Pythagoras’ Theorem, it would gradually be increasingly understood through science – in particular, psychology and behavioral science. The exact effect of universalizing this maxim is, due to this complexity, unclear. The Formula for Humanity Kant’s formula of humanity as an end in itself gives us significantly clearer guidance for the maxim. Kant requires not that we never use other rational beings as means, as that would be near impossible, but that we never use them merely as means.[11] Any act where someone uses another as a means to an end consensually is acceptable. For example, if Alice buys a coffee from a barista at a mutually acceptable rate, they have both acted morally, despite Alice using the barista as her means to acquire a coffee, and the barista using Alice as their means to acquire money. However, we do not owe the same duty to irrational beings. It is the presence of a will that makes someone human, and it is this humanity to which one owes consent. Two different characterizations of humans’ decision-making capacities, which we shall respectively call ‘irrational’ and ‘rational’, point us to similar conclusions, but with slightly different implications. Kant describes our decision-making as generally rational, except in the cases where our emotions become “affects” and “passions”, and we lose some control of our actions, in which case we are irrational[12] . Under the irrational characterization, the will can be overridden by our animal nature. This occurs when people are under stress, or otherwise incapacitated, such that their emotions can override their rational sense. One common example of this phenomenon would be the ‘fight or flight’ response. In this case it is clear that my maxim conflicts with the formula of humanity. In the contexts described, I am using the target’s humanity as a means, as without it I could not get what I want. That is to say, I could not get money or political support from a child, robot or animal. However, rather than treating their humanity as an end, I am bypassing their humanity to appeal to their animal instincts, and gaining from their humanity in the process. Even if I ask for consent to make my appeal, or they have full knowledge that the appeal is occurring, if my target is behaving irrationally, the appeal can change their behavior by overriding the will and thus violating their humanity. It could be argued, as a rebuttal, that irrational persons are not deserving of this protection, as we have no moral duty to one without rational capacity. However, this would not constitute the protection of rational nature, which deserves regard even when it is incomplete or temporarily incapacitated.[13] This is why we have different duties surrounding addictive substances, and selling alcohol to the intoxicated. Like children, people behaving irrationally have latent rationality, and we should try to engage with that, rather than taking advantage of their irrationality. Under the second characterization, people are consistently rational, but animal instincts form inclinations that influence our behavior. Kant’s distinction in the original German between the willkür and wille helps aid this discussion. The willkür (will) ultimately makes the decisions, but animal inclinations and the wille (moral faculties) make up the arguments for the action. This concept is regularly characterized as ‘autonomy of the will’, which ‘is not the special achievement of the most independent, but a property of any reasoning being’.[14] Thus, the ‘appeal’ to animal instincts in my maxim does not make animal instincts decide for us, but strengthens the argument on behalf of those instincts. In this case, the target is able to consider their emotional response through their will, but surely only if they are aware that the argument is affecting their emotions. The target can only rationally engage with the appeal if they are aware of it, and this is a key factor to whether my maxim violates the target’s humanity. This has similarities with Phillips’ second interpretation of his maxim, wherein people treat emotional arguments as logical ones, assessing them from that perspective using the will. The maxim can be split into two scenarios to accommodate this change: “Where it serves my purpose, I will use persuasion to appeal to another person’s animal instincts without their knowledge, to encourage them to do what I want”. “Where it serves my purpose, I will use persuasion to appeal to another person’s animal instincts with their knowledge, to encourage them to do what I want”. In the first case, I consciously appeal to their animal instincts without their knowledge, using their humanity merely as a means to an end – they are furthering my political or economic goal in a way that a child or animal generally could not. However, in the second, the appeal to animal instincts is only as immoral as indulging one’s own animal instincts: it is an instance of a will allowing the animal instincts inherent in the human form to influence its behavior. The question that remains, on what counts as knowledge, deserves focused attention in the discussion of how this maxim would be treated by Kant’s formulation of the kingdom of ends. The Kingdom of Ends As we move into a discussion of the kingdom of ends, we have essential questions left to answer. The first formulation does not clarify our duty, but analysis of the second has ruled out appeals that my target is not consciously aware of. We still need a contextual definition of knowledge, and an account of how I may know my target possesses it. Clearly, appeals where they are completely unexpected are not allowed, as they involve a violation of trust and no opportunity for the will to make a decision. Thus, using subtle messaging to convince your friend to come to 350.org meetings is out of the question. Conversely, appeals where active consent has been gained are clearly acceptable. A door-to-door insurance salesperson who gains active consent to tell her tales of tragedy, noting that they may incite fear, should feel no qualms in doing so. However, the target’s knowledge does not necessarily require active consent. Advertising and campaigning occur in marked zones, like in television advert slots and conversations at stalls. People are aware of the norms in these areas, and not only are they able to physically tune out, they are also able to think and react critically. It would be overstepping the Kantian mark to say that we should only ever appeal to our target’s autonomous will, and never engage directly with their emotions. Abiding by such a rule would severely decrease one’s persuasive ability.[15] In a sense, this would constitute failure to respect one’s own subjective ends – the ends one desires to bring about, but which do not necessarily hold moral worth. Moreover, it is not our duty to make sure others act rationally – only to ensure that we are not violating their autonomy. While the easiest answer for the moral stickler is to consistently ask for the consent, or avoid emotional appeals altogether, those who do not wish to dampen the results of their business or campaign with unnecessarily bad persuasion should push further. Kant’s final formulation, the kingdom of ends, by his own account combines the preceding two formulations for a ‘systematic union of several rational beings through universal laws’.[16] In this moral kingdom, only humanity has ultimate worth, but rational beings’ subjective ends have substitutable value, which we have a duty to respect. Acting as though one were in the kingdom of ends involves interacting with others as though they are autonomous rational agents, giving them some degree of responsibility as well as some charity.[17] The weighing up of responsibility and charity is essential to determining the moral value and practical application of my maxim. Treating others as ends in the kingdom means not only allowing them consent, but also holding them responsible for their actions because they are a rational agent. In doing this we should be charitable, by taking into account moral education and relevant personal history, and by realizing that ‘even the best of us can slip’.[18] Korsgaard discusses judgments of rationality after someone else has acted, but the same judgments can be extended in considering the moral acceptability of an action that changes others’ actions. We have a moral obligation to judge people primarily using the second characterization of decision-making, which allows my maxim wherever the target has knowledge of the appeal. However, when we have good reason to believe their rationality is incapacitated, we should judge them under the first characterization. Within certain contexts, namely advertising and campaigning spaces, the consent to appeals to animal instincts are implicit – people are aware that these appeals happen, and they have freedom to opt out of these interactions. Moreover, in knowing that the appeals occur, they are able to engage critically with these appeals, using their will. However, a charitable view means realizing that sometimes my target will be irrational. Even though my intention is not to manipulate, a badly developed view of their rational capacities could mean that my appeal inadvertently treats them merely as a means. This is especially likely if my appeal is done with a parochial lack of awareness of the target’s culture and moral education.[19] We thus have a responsibility to gain knowledge of which maxims are likely to violate another’s human dignity, even if they would not do so if committed against us. For advertisers and campaigners, the target’s knowledge as a moral necessity means ruling out some forms of advertising, and making a concerted effort to consider the specific target audience, and avoid practices that would likely violate their autonomy. Although there will still be some risk of the target having a purely emotional response, dedicated and genuine engagement with this issue is in itself treating them as an end. Such consideration will also result in better engagement with the will, and has practical implications in terms of duty. Although these distinctions do not clearly separate campaigning and advertising, they do leave the tactics usually used by campaigners with more latitude. Advertising that purposely engages only with animal instincts is immoral. This means we have a perfect duty against advertising that tries to stimulate ‘impulse buys’, or similarly, campaigning that manipulates the weak-willed to support a campaign. Moreover, relating to the question of the target’s knowledge, it is worthwhile to consider the difference between direct appeals and broadcast appeals. Direct appeals involve interpersonal interaction where the agent witnesses the reaction of their target, while broadcast appeals do not. Although both advertising and campaigning use direct and broadcast methods, campaigning often makes more use of the first, and advertising more of the second. In interpersonal engagements, the persuader will notice many characteristics of the target. They can gauge the target’s apparent state of mind, and whether their engagement seems rational or emotional. On account of this knowledge, the persuader has heightened power to manipulate the target. However, the moral response is, rather than exploiting this power, creating the perfect balance between making a convincing case, and ensuring that their target is behaving responsibly. For broadcast methods, appeals to animal instinct must necessarily be more explicit, and practiced with caution appropriate to the situation. Evaluating the Kantian Account The Kantian treatment of this issue reveals some controversial issues with Kantian ethics in the way it avoids any consequentialist considerations. Such considerations involve weighing up the consequences of an action in analyzing its moral worth. One problem with the Kantian account lies in its lack of differentiation between different types of emotional responses. I would have liked this analysis to develop a duty against advertisements for beauty products that manipulate an irrational connection between image and self-worth. The appeal can still work even if the target knows that it is occurring, because the association gains strength from societal norms. Even with a pre-warning saying ‘this ad associates beauty with worthiness’ the advertisement will only remind the target of their experience of this association. In this way, it plays on emotions caused by social anxiety, and amplifies harmful norms in a way that appeals to hunger or empathy do not. Moreover, this appeal’s effectiveness does not depend on whether society actually values people according to aesthetics; it is about the rational, but potentially uninformed view of the target. Furthermore, the association between beauty and worthiness is not a lie, but an opinion, albeit a harmful one. There is some room to argue that such appeals normalize irrational associations, in effect decreasing the rational capacity of individuals over time. However, this relies on a subjective characterization of irrationality, verging on paternalism, and does not hold rational agents responsible for engaging with their own emotions. It would be more accurate to say that such appeals, although respecting rationality, have harmful consequences – a concept that Kantian philosophy does not incorporate. A full account of ethical appeals in advertising needs to rule out any appeals that lazily amplify existing but harmful social norms – but this consequentialist goal does not fit within Kantian ethics. In other areas, the Kantian approach rules out some appeals that a consequentialist might accept. Although this could be seen as an issue with the Kantian approach, it is also one of its strengths. Any Kantian would accept the argument that certain persuasive methods have no moral worth, no matter what their larger aim is. However, pluralist philosophies, in rejecting the primacy of rationality to place a substitutable value on the target’s autonomy, may find that the campaigner should be allowed more scope to manipulate their target emotionally. Given that their campaign has a sufficiently good end, and sufficiently high chances of success, and given that Kantian reasoning would be significantly less effective, a pluralist philosophy incorporating Kantian reasoning and and consequentialism would allow some manipulation in a campaigning context that would not be allowed in a purely selfish advertising context. The Kantian emphasis on universalization and non-interference is at odds with the goals of the campaigner, who is trying to right some wrong often caused by the immoral behavior of others. In fact, Sher’s discussion provides a framework in which the amount the product benefits the consumer may be a sufficient defense for using manipulative advertising.[20] A pluralistic view of morality would likely permit more manipulative appeals in advertising or campaigning, if the campaign or product were sufficiently good. Even accepting pluralism, the above account may not hold for campaigns, because appeals to animal instincts can have wider negative consequences. Firstly, the increased success, or likelihood of success, of the campaign may not be large enough to outweigh violation of people’s autonomy. Secondly, the recruitment of emotionally driven supporters could lead to a less principled campaign base, or a less enduring campaign. Making a moral decision incorporating such factors would require a thorough assessment of risk and benefit. The Kantian approach precludes these empirical considerations, in turn encouraging a slow, reliably moral approach to social change. This firm adherence to avoiding harm acts as a kind of safeguard to prevent blindly emotionally driven, badly considered campaigns, with supporters that are ultimately being exploited.[21] Even if my campaign is one that aims to protect others’ autonomy, for example, by freeing people from torture, my perfect Kantian duty is to not violate others’ autonomy, while the duty to protect rationality from others’ interference is an imperfect duty, and can only be achieved through moral means. Kantian ethics provides a clear account of our moral duties in the sphere of appeals to animal instincts. In some cases, where I have no reason to think that the target might engage rationally with emotional appeals, they are indefensible. In cases where the context allows for rational engagement, my duty is to consider the target as both responsible and manipulable, and genuinely consider whether I need to adapt my tactics to ensure their humanity is not violated. My intention should always be to strengthen the emotional argument, giving them ample opportunity to engage rationally with the appeal, rather than making emotions control my target. The Kantian account of duty is largely acceptable, but weakened by its failure to differentiate between benign and harmful animal instincts. Although the pluralist might find some issues with the Kantian account as it relates to campaigning, its clear conclusion provides us with a useful, albeit incomplete guide to social change without adverse consequences. Endnotes [1] Kant, Immanuel. (1997). Groundwork to the Metaphysics of Morals (GMM) In Gregor, Mary J. Practical Philosophy. Cambridge University Press. (4:421) [2] Phillips, Michael J. (1997) Ethics and Manipulation in Advertising: Answering a Flawed Indictment. Greenwood Publishing Group. [3] Herman, Barbara. (1997). ‘A Cosmopolitan Kingdom of Ends’. In Andrews Reath, Barbara Herman, Christine M. Korsgaard & John Rawls (eds.). Reclaiming the History of Ethics: Essays for John Rawls. Cambridge University Press. pp. 187-213 [4] Louden, Robert B. (2000). Kant's Impure Ethics: From Rational Beings to Human Beings. Oxford University Press. [5] Kant, Groundwork to the Metaphysics of Morals, (4:402) [6] Korsgaard, Christine M. (2004). ‘Fellow creatures: Kantian ethics and our duties to animals’. Tanner Lectures on Human Values 24: 77-110. [7] Wood, Allen W. (1998). Kant on Duties Regarding Nonrational Nature. Aristotelian Society Supplementary Volume 72 (1):189–210. [8] Wood, Kant on Duties Regarding Nonrational Nature, 189–210 [9] Phillips, (1997), Ethics and Manipulation in Advertising. [10] Rawls, John. (2000). ‘The Four-Step CI Procedure’ In Lectures on the History of Moral Philosophy. Harvard University Press. p. 169. [11] Kant, Groundwork to the Metaphysics of Morals, (4:429) [12] Formosa, Paul. (2013). ‘Kant’s Conception of Personal Autonomy’. Journal of Social Philosophy 44, no. 3. pp. 193-212.p. 198. [13] Wood, (1998) ‘Kant on Duties Regarding Nonrational Nature’. [14] O'Neill, Onora. (1989) Constructions of Reason. Cambridge: Cambridge University Press. p. 76. [15] Baron, Marcia. (2002). ‘Acting from Duty’ In Wood. Groundwork for the Metaphysics of Morals. Yale University Press. pp. 92-110 [16] Kant, Groundwork to the Metaphysics of Morals, (4:433) [17] Korsgaard, Christine M. (1992). ‘Creating the Kingdom of Ends: Reciprocity and Responsibility in Personal Relations’. Philosophical Perspectives, Vol. 6 Ethics. pp. 305-332 [18] Korsgaard, Creating the Kingdom of Ends: Reciprocity and Responsibility in Personal Relations, 324 [19] Herman, (1997) ‘A Cosmopolitan Kingdom of Ends’. [20] Sher, Shlomo. (2011). ‘A Framework for Assessing Immorally Manipulative Marketing Tactics’, Journal of Business Ethics 102, pp.97–118 [21] One contemporary example of such a campaign is the KONY 2012 movement, which initially avoided scrutiny by motivating people’s support by appealing to their emotions. References Baron, Marcia. (2002). ‘Acting from Duty’ In Wood. Groundwork for the Metaphysics of Morals. Yale University Press. pp. 92-110 Formosa, Paul. (2013). ‘Kant’s Conception of Personal Autonomy’. Journal of Social Philosophy 44, no. 3. pp. 193-212. Herman, Barbara. (1997). ‘A Cosmopolitan Kingdom of Ends’ In Andrews Reath, Barbara Herman, Christine M. Korsgaard & John Rawls (eds.), Reclaiming the History of Ethics: Essays for John Rawls. Cambridge University Press. pp. 187-213 Kant, Immanuel. (1997). Groundwork to the Metaphysics of Morals (GMM). In Gregor, Mary J., Practical Philosophy. Cambridge University Press. Korsgaard, Christine M. (1992). ‘Creating the Kingdom of Ends: Reciprocity and Responsibility in Personal Relations’. Philosophical Perspectives, Vol. 6 Ethics. pp. 305-332 Korsgaard, Christine M. (2004). ‘Fellow creatures: Kantian ethics and our duties to animals’. Tanner Lectures on Human Values 24: 77-110. Louden, Robert B. (2000). Kant's Impure Ethics: From Rational Beings to Human Beings. Oxford University Press. O'Neill, Onora. (1989). Constructions of Reason, Cambridge: Cambridge University Press. Phillips, Michael J. (1997) Ethics and Manipulation in Advertising: Answering a Flawed Indictment, Greenwood Publishing Group. Rawls, John. (2000). ‘The Four-Step CI Procedure’ In Lectures on the History of Moral Philosophy. Harvard University Press. Sher, Shlomo. (2011). ‘A Framework for Assessing Immorally Manipulative Marketing Tactics’. Journal of Business Ethics 102. pp. 97–118 Wood, Allen W. (1998). Kant on Duties Regarding Nonrational Nature. Aristotelian Society Supplementary Volume, 72 (1):189–210.

Jasmine Bacchus Tribes and Tribulations: Character as Property in Survivor Jasmine Bacchus Almost 600 contestants have appeared on the US version of Survivor , with only 82 of those contestants (approximately 13%) identifying as Black. Over the past twenty years, Black Survivor contestants have expressed that their portrayal on the edited version of the show misrepresents their lived experiences on and off the island. In 2020, a group of Black alumni joined together to produce a series of panels and discussions on race in Survivor and have argued that CBS, the show’s broadcasting network, has a responsibility to accurately and appropriately represent the experiences of their contestants of color. This paper explores character as a form of property and aims to showcase how intellectual property rights and the right to publicity function within the context of reality television. Ultimately, I argue that networks, such as CBS, should aim to balance their desire to produce an entertaining show with genuine attempts to accurately tell the stories of Black and Indigenous People of Color (BIPOC). After showcasing how CBS’s ownership of their contestant’s characters has uniquely harmed Black contestants, I will suggest steps CBS can take to improve their portrayals. I. Character on Survivor Survivor is an American television show created by Mark Burnett in 2000. The premise of the show is that 16-20 players, called “castaways,” are brought to a deserted island. The castaways are put into two teams, called “tribes.” In each episode, the two tribes compete against each other in a series of challenges. The losing tribe goes to “Tribal Council” where they collectively vote one player off of the island. This pattern continues until there are only two or three contestants left in the game; the final players then face a “jury” consisting of the last seven players that have been voted out of the game. The final players give speeches and the jury members cast their vote for the player they want to win the game. The winner receives the title of “Sole Survivor” and $1,000,000. As a reality TV show, Survivor is known for its memorable characters and character moments. When the show originally aired in 2000, one of the earliest marketing points was that the game was bringing sixteen people from different “walks of life”; the significance of bringing together different socioeconomic, racial, and geographic backgrounds made the show a televised social experiment. While the show still claims to bring together a diverse group of players, at home, audience members see characters carefully crafted by the network, rather than raw footage of sixteen strangers. The discrepancy between reality and their portrayal is what has sparked action from Black Survivor alumni. During the casting and editing process, contestants are typically shaped to fit specific archetypes. While Survivor producers aim to get contestants from a range of archetypes each season, many times Black contestants are repeatedly cast into the same roles or emphasized for the same shortcomings. Gervase Peterson (Season 1), Osten Taylor (S7), Tasha Fox (S31), and Keith Sowell (S38) received major storylines about their inability to swim, contributing to the harmful stereotype that “Black people can’t swim.” Alicia Calaway (S2) is primarily remembered for being aggressive and JoAnna Ward (S6) was shown as “overly religious.” Likewise, contestants NaOnka Mixon (21), Nick Brown (S2), and J’Tia Hart were primarily shown as being “lazy” and nonstrategic and were frequently shown taking naps and not participating in camp work. This seems to suggest that “laziness” is one of their core personality traits when in fact outside of the game, Mixon was a physical education teacher, Brown was a Harvard Law Student, and Hart was a nuclear engineer with a Ph.D. (1). Black contestants have argued that these repetitive, one-sided portrayals ignore the fact that the Black Survivor community is not a monolith. The contestants are multifaceted people, but by shoehorning them into the same narratives every season, they are inaccurately portraying the true personas of the contestants. While producers can only work with the footage they are given, Black contestants have argued that the showrunners focus on turning the footage into memorable moments without also highlighting their gameplay and strategy. While a white contestant may be given both a fun edit and strategic moments, Black contestants often are only highlighted when they do something to support their assigned archetype. These one-sided portrayals come at the expense of giving the contestants “proper credit” for the positive contributions they made to the game. Vecepia “Vee” Towery, winner of Survivor: Marquesas and the first African American contestant to win the game, has been known throughout the Survivor community for being a “boring” and “nonstrategic” player, yet during one of the Black Voices of Survivor panels, Vecepia spoke out about her edit: They flipped it and made me look like I was under the radar like I didn’t do anything to win that game. Even to the point that when we were watch- ing the episodes, people on my season would call me and email me like ‘that didn’t happen like that. Why didn’t they show you doing that?’ and I’m sitting there like I have no idea (2). With instances like Vecepia’s occurring regularly, Black Survivor contestants have joined together to campaign for better representation. Black alumni shared their stories in a series of podcasts known as the “Black Voices of Survivor”; the series is accompanied by a petition sent to CBS, which called for “anti-racism”; specifically, they called for CBS to “Ensure that cultural elements of the experiences of BIPOC are not exploited and their portrayal does not perpetuate harmful stereotypes” (3). This raises the question: to what extent do Black contestants have ownership over how they are portrayed on the show? The following sections explore the concept of a “reality tv character” and examine how intellectual property (IP) and publicity laws can be used to give individuals and corporations ownership over characters. II. Character as Property I believe that property functions in this setting as a means of character owner- ship. Denise Martinez defines “character” as “the aggregate of features and traits that form the individual nature of a person” (4). These traits and features are constructed by various elements, including the person’s “physical appearance, their background and personality, the words they use and the actions they take” (5). As I discuss character in this paper, I am referring to the aggregate of a contestant’s personalities, appearances, and actions, that edited together, make “a character.” Personality is a key component used to build a character. Deborah Halbert breaks a reality TV star’s personality into three parts. There is the “human persona,” which is the person in their everyday life, a functional persona, which represents the archetypal character the network aims to project, and a hybrid persona, which contains elements of both (6). What we see on television is the hybrid persona, where the “Reality TV star’s personality is combined with producer-controlled storylines and edits” (7). This, combined with other elements of their wardrobe and back- ground, create a reality TV character. Thus, the tension between the contestants and the network is over the ownership of these characters. By “character ownership,” I mean control over how the character, including the hybrid persona, is displayed in the edited final cut of the television show and any appearances of the character afterward. The law views character ownership in a couple of ways. Both IP and publicity rights have been invoked to claim ownership over a character. Reality TV characters, however, do not tend to receive intellectual property protections. In order for a character to be eligible for copyright, the creator must prove that the character is 1) “sufficiently Distinctive So as to Constitute an Original Expression” and 2) “constitute the story being told” (8). Martinez argues that reality TV characters are not sufficiently distinctive, as their “hairstyle, hair color, clothing (costume), and scenery change from one episode or season of a reality TV show to another”(9). Likewise, with ensemble casts, a singular Survivor contestant would not “constitute the story being told”: in other words, if that contestant was removed from the season, the show would still be able to proceed (10). While stereotypes themselves cannot be trademarked, trademarked characters, such as “Aunt Jemima,” have perpetuated negative stereotypes about the Black community (11). Some reality stars have sought trademark protection over certain aspects of their character as a way of claiming ownership over their “personal brand” (12). In the early days of Survivor , some contestants would use their experience on the show to propel them to higher celebrity statuses with hopes of making money off of their appearances (13). Contestants who received poor edits might have been excluded from those opportunities, however, even those who were offered opportunities were often denied participation by CBS.14 Sean Rector (S4) described his experience with this, stating “many of the opportunities that were offered to me from different networks, and even Viacom, were denied to me by SEG/Survivor and yet my image and catchphrases [are] exploited on merchandise and monetized by various different entities and I couldn’t even mention Survivor let alone try and make a living off of my experience” (15). While there is an interesting argument to be made that contestants are being robbed of the opportunity to profit off of their personal brand, I am primarily concerned about situations where CBS’s ownership of Black and POC characters cause contestants to be disproportionately affected relative to white contestants. While BIPOC contestants may experience less accurate portrayals than their counterparts, all contestants lack the ability to trademark these aspects of their brand. Ultimately, the ability to profit off of their appearance does not seem to be the primary concern raised by the Black Survivor alumni. III. The Survivor Contract What I see as the primary property issue here is the right to publicity, which “protects against the unauthorized appropriation of a person’s name, likeness, portrait, picture, voice and other indicia of identity or persona” (16). Survivor contestants give up their right to publicity when they sign the participation contract. During the early stages of the casting process, contestants who wish to continue in the casting process must sign a contract that releases their right to their portrayal during the show and after it airs. Deborah Herbert explains, “the contract grants CBS all rights to the name and likeness of the application, forever, even if the application is not recognizable” (17). If they are selected to participate on the show, “anything related to Survivor becomes the property of CBS” (18). Not only does the contract give CBS the rights to control how they are portrayed, but the network maintains full control over their “life story,” and this control extends after the show airs (19). Thus, once a contestant signs the contract, they relinquish any right to their storylines or narratives on the show, and technically cannot do or say anything after the show to contradict anything that was portrayed onscreen with- out facing a potential penalty (20). As a result, any interviews, talk shows, books, or appearances a contestant wants to make for at least three years after the show airs must be cleared by CBS first. With CBS having control over their narratives on the show and actions afterward, Black contestants have struggled to find ways to reshape their characters outside after the show has aired. Two of the four Black Survivor winners have expressed a desire to participate in positive outreach to the Black community after their show, however, they received little to no support from CBS to do so. Earl Cole, the winner of Survivor’s fourteenth season , Survivor: Fiji, was the first Black man to win the show and the first contestant to receive a unanimous vote at the end of the game. During “The Black Voices of Survivor: Roundtable,” Earl explained that after he won the show, CBS gave him a structured list of appearances and interviews to make. Earl noticed that most of the venues he was scheduled to speak at catered to a predominately white audience and asked CBS if he could make additional appearances at venues where he was more likely to reach a Black audience. However, he was met with opposition from the network. He explained: I thought that CBS would use this as an opportunity to actually try to get more Black viewers...[but] nothing happened. They did nothing for me. They didn’t promote me in any kind of way...like hey you know a Black dude just won for the first time, won unanimously...[But] I never got any of those opportunities, no promotional things, no marketing things (21). Wendell Holland, winner of S urvivor: Ghost Island experienced similar frustra- tion when trying to obtain access to clips from the show for speaking engagements. Wendell described his experience to the group, stating: We [the four Black winners] want to be great ambassadors for Survivor . We want to go to the community...scream from the mountaintops that we were on Survivor ...I spoke at so many places and I tried my hardest to acquire things. I would try to get clips from my show, I’d go through the proper channels, I would send messages to the people at CBS and they make me jump through so many hoops, and ultimately they wouldn’t give me anything, that I could show to like 700 kids (22). The anecdotes from Earl and Wendell showcase how little agency contestants have once they sign the contract and agree to participate on the show. While the argument can be made that players could have read the contract and refused to sign it, often reality TV contestants have limited legal understanding and when faced with a 100+ page document they may feel overwhelmed or unable to digest it all. While perhaps contestants should read the contract with an attorney present, often reality tv contestants are given a limited amount of time to sign and feel pressured to do so before the network replaces them with another candidate (23). In an interview for Entertainment Weekly, Sean Rector expressed regret for how the contract signing process went down, stating: I rarely have regrets in life, but if there were some regrets after doing the show, it would have been that I wished I would’ve legally understood the SEG/Survivor contract I signed. I wished they would’ve had more transparency and explanation as to why certain people were able to capitalize off of their experience and others were not (24). With the pressure to sign quickly and no legal counsel provided by CBS, Survivor contestants have signed away their right to publicity for the rest of their lives, making it challenging for contestants to remedy harmful on-screen portrayals. VI. Race and Character Portrayal – Finding Balance Given the extensive contracts they signed when they auditioned for the show, Black Survivor contestants do not retain any rights to publicity over their Survivor character. CBS has economic incentives to continue to structure their contracts in this manner, however as more stories of Black contestants begin to be made public, the network is facing pressure to better characterize their BIPOC contestants. Thus, if CBS continues to require contestants to sign away their right to publicity, they still may be held accountable when it comes to handling the characterization and life stories of marginalized individuals. Thus, how can networks balance exercising their autonomy over character creation (to craft an entertaining show), without putting marginalized groups in a position where they are forced to connect their likenesses to harmful stereotypes? In this final section, I will explain how and why CBS should take steps to better characterize their contestants of color, and how they can do so, without modifying their contract. Unique Harms to Black Contestants A negative reality television edit has the potential to harm any contestant, how- ever, I believe that stereotypical portrayals of predominantly Black contestants create unique harms to the Black community. In her study of race on reality TV shows, Katrina Bell-Jordan writes that reality television can “shape the reality of race and racism in the US” (25). For BIPOC contestants, their character portrayals shape not only their personal image, but how our society views African Americans. Bell-Jordan explains that the “editing and framing of footage depicting the experiences of ‘real’ people have the power to shape our understandings of the people, places and sociocultural issues presented on these programs” (26). People who watch Survivor may have limited real-life experience interacting with the Black community. Thus, portrayals of Black contestants can directly shape the way a person views the community. Likewise, at this point, many Black contestants have recognized how important it is to be depicted in a non-harmful light, and thus multiple Black castaways have spoken out about the pressure they felt to positively represent their ethnic group and avoid any editing traps while on the show. Thus, these players enter the show aiming to “dispel the myths about their respective group” (27). Often, they spend additional energy not only trying to play the game but being hyper-aware of their surroundings and their actions, so they can avoid alienating their tribe. This pressure is two-pronged. For example, while a white contestant may feel comfortable taking a nap after helping catch food for dinner, a Black contestant may feel an additional pressure to stay active, as they would not want their nap to become their main storyline. They are likely aware of the “lazy” stereotype that has been pushed on previous Black contestants and will want to make sure their fellow castaways have no evidence of them being lazy (as this would likely lead to them being voted out). They may also feel an additional level of anxiety around the producer’s ability to push the stereotype on them. While all castaways regardless of race are thinking about their in-game relationships and the final edit, Black castaways experience a unique pressure to avoid falling into stereotypical narratives historically pushed by the show. Navigating these one-dimensional negative portrayals may also make it more challenging for players to be invited back to play Survivor again. Many contestants dream about the chance to be invited back; another chance gives them more exposure, another once-in-a-lifetime experience, and another chance to win $1,000,000. Thus, not being invited back is incredibly disappointing to many players. Black alumni expressed frustration when Vecepia, the first Black contestant to win and the only Black woman to win, was one of the only winners not invited to play in the “All-Winners” season of Survivor . Unpopular characters are less likely to be invited back to play Survivor again; contestants with poor edits are often perceived negatively by the fanbase and thus denied another invitation. However, refusing to play into a stereotype may cause a player to be disliked by production, which could still lead to a negative edit (albeit a different one) or being “black- listed” from future invitations. Out of the 103 contestants who have been invited back to the show, only 11 of the invited castaways are Black (28). Knowing that they are invited back at a lower rate, Black and other BIPOC contestants face another level of complexity not faced by their white counterparts. Lastly, unbalanced edits can lead to Black stories being completely ignored. During Season 38 Julia Carter was the only Black castaway in her tribe. During the first few nights of the game, a fellow castaway used a racial slur. Julia reported feeling uncomfortable but remained silent due to a desire not to make her tribe uncomfortable or put a “target” on her back. Eventually, a white castaway stepped in and confronted the other contestant. After this incident occurred, Julia hoped that once aired, it would create a dialogue amongst viewers about language and race. However, CBS chose not to air any part of this incident, and many speculate that this was done to protect the reputation of the castaway who said the slur (29). In fact, Julia is known for being virtually erased from the entire season, receiving very few confessionals or moments at all (30). This story only came to light after Julia wrote an essay about the incident after the show aired. Unfortunately, Julia’s story of unaired racial incidents is not unique. When the edit chooses to ignore these contestant narratives altogether, they invalidate the lived experiences of Black contestants, while making no effort to make the game a more comfortable space for BIPOC players. Network Incentives to Address these Harms As I mentioned earlier, for many viewers, characters and their storylines are what makes a show like Survivor so interesting. Building drama, creating conflict, and putting contestants in challenging situations are essential parts of the show, and to do that effectively, production companies need to have blanket approval from the contestants. The contract enables CBS to have control over these creative elements of the show. By owning each contestant’s right to publicity, the network has creative freedom to produce a show that is entertaining to the public. Likewise, character creation is a time consuming, creative process. Retaining rights to these characters serves as an economic incentive for the company to create compelling ones that will generate high viewership. Likewise, part of being a reality TV contestant is the willingness to put yourself out there and risk potential failures or humiliations that may occur (31). Contestants should expect that any negative footage obtained is fair game to be used for the show. Likewise, the comprehensive contract allows producers to obtain “genuine” footage from contestants. Some aspects of Survivor , like the “gross” food eating challenges, are centered around the contestants not knowing what they are going to face. If contestants were to be given a contract that revealed everything that would happen to them, it would remove elements of drama and make it much less satisfying to watch their reactions (32). If CBS was required to receive editing approval from each contestant before airing a show, likely we would never see any conflicts (artificial or genuine), mess-ups, or moments of stupidity. While a contestant may not feel like they “signed up to be portrayed as an idiot,” by virtue of the genre, players should expect some level of humiliation. However, I believe that the harms created by CBS’s current portrayals combined with their contract make the game uniquely challenging for BIPOC players beyond the reasonable expectation of humiliation and drama. The game of Survivor is not “fair”—every player will experience varying levels of luck throughout their time on the show. However, the show is edited in a way that portrays, to the audience, a level of “fairness.” We are led to believe that at the start of the show, for all intents and purposes, each contestant has a relatively fair shot of winning. Yet, Black contestants are not only trying to play the game, but they also attempt to dodge negative stereotypes and positively represent their entire group, all while navigating their complex relationship with production. There is a whole new level of challenge for these contestants. One group of people consistently facing additional hurdles and challenges undermines this illusion of “fairness” that the network tries to create. Continuing to ignore these inherent disadvantages faced by players delegitimizes the game of Survivor . As these issues come to light, the show is at risk of losing the element of com- petition that makes the audience want to turn in each week to find out who moves on. Likewise, as the Black Survivors have begun to speak out about their concerns, CBS has faced lots of negative publicity for how they treat BIPOC contestants. As more Black contestants share negative experiences, future applicants of color may be deterred from applying to be on the show. CBS has already received negative publicity surrounding this issue, but a season of all white contestants would possibly put the show over the edge. Thus, the network now has two incentives to tackle this issue 1) the incentive to continue to stage Survivor as a “fair game” and 2) the incentive to respond to the negative publicity. I recognize that CBS has the economic motive to produce an entertaining show; retaining the right to publicity over their characters and IP ownership over their recordings gives them an incentive to create quality content. I do not believe that CBS needs to modify their contract as it currently exists. However, the network also has an incentive to improve the way they tell Black stories. The network should take steps to make these improvements. Suggestions for CBS Without modifying their contract, the Survivor team should take steps to minimize future harmful portrayals in the first place. The petition sent by the Sole Survivors Organization asked CBS to hire more BIPOC producers, casting directors, and editors to increase the likelihood that diverse stories are being told in a way that is respectful and accurate (33). A more diverse team would be more equipped to think about representing new archetypes and displaying important parts of each BIPOC castaway’s “life stories.” Likewise, CBS should also make it a priority to cast a more diverse group of players. Some of the pressure tied to a contestant’s feeling like they must “represent for their race” is the fact that Black contestants are only 13% of all players. Often, Black players find themselves one of maybe two African American contestants on a season. The limited amount of representation makes the stakes of an accurate portrayal even higher. The Sole Survivor Organization suggested 30% of the cast each season to people of color (34) and CBS has publicly expressed intent to work towards achieving a similar goal (35). Moving forward, the network should work to increase the number of diverse voices at all stages of production. Likewise, CBS should encourage contestants to speak out against inaccurate portrayals as they see fit. As we have seen with the Black Voices of Survivor podcast, contestants have already begun to speak about their experiences without authorization from the network. I believe that dialogues such as the Black Voices of Survivor should not only be permitted but encouraged; if contestants are encouraged to speak up, stories of stereotypical portrayals made public will put more pressure on the network to do a better job in future seasons. In cases where Black winners, like Wendell and Earl, want to speak in the Black community, the network should be more open to giving them access to materials from the show. No modification to their contract has to be made, but the network should be more diligent about approving and supporting the speaking engagements of BIPOC contestants. V. Conclusion Throughout this paper, I have showcased how Black Survivor contestants have felt inaccurately portrayed by CBS and I have examined their desire to receive ownership over their on-screen characters. The unique harms experienced by Black contestants reveal that an understanding of property driven by economic incentives can cause great harm to specific groups of people. I recognize that CBS’s property claims enable them to create compelling characters and produce their show without fear of interference from disgruntled contestants, however, their absolute character ownership has uniquely harmed BIPOC contestants. Thus, I suggested that CBS increase diversity amongst all aspects of the filming process and to encourage BIPOC contestants to speak up when they feel uncomfortable with their edit. While neither of these options will give these contestants the ability to trademark their catchphrases or control their edit, it is a step towards eliminating the pressures that come with harmful portrayals. Our systems do not seem to recognize when the creations we fostered create harmful, negative externalities. We seem to rely on the market to naturally eliminate creations that do more harm than good. In the case of CBS, public reaction is the only way to gauge if their show is net positive for society, however, controlling the contestant’s right to publicity functions as a way of managing public reaction through limiting public interactions. Thus, this issue is important to a discussion about property because it highlights how the economic benefits of property rights can lead to negative externalities that uniquely harm marginalized communities. In this case, property rights seem to foster innovation, but there is no formal system in place to check if the innovation, Survivor , is continuing to positively impact society (or even, a structured way to measure what constitutes a “net positive im- pact”). In this case, property rights do not have to be a zero-sum game where either the producers or the contestants are satisfied. Hopefully, the external pressure caused by the public will push CBS to engage with their BIPOC contestants. However, I recognize that the network may choose not to make any changes to their production teams or processes. Therefore, this issue has showcased to me that while property laws can foster creativity, they can also create societal harms that uniquely harm groups of people. Endnotes 1 Office of Economic Impact and Diversity. “Dr. J’Tia Hart.” Energy.gov, www.energy.gov/diversity/ contributors/dr-j-tia-hart. 2 Rob Has a Podcast, director. Black Voices of Survivor: Changing the Game of Survivor. YouTube, 1 Sept. 2020, www.youtube.com/watch?v=e7_rju1pneQ. 3 The Soul Survivors Organization, and J’Tia Heart. “A Petition for Anti-Racism Action by Survivor Entertainment Group.” MoveOn, June 2020, sign.moveon.org/petitions/a-petition-for-anti-racism-action-by- survivor-entertainment-group-2. 4 Martinez, Denise. “Character Ownership in Reality TV”. p. 5. 5 Ibid. 6 Halbert, Debora. “Who Owns Your Personality: Reality Television and Publicity Rights.” Survivor Lessons Essays on Communication and Reality Television, by Matthew J. Smith and Andrew F.. Wood, McFarland & Company, 2003, p. 42. 7 Martinez, Denise. “Character Ownership in Reality TV.” p. 6. 8 Ibid, p. 8. 9 Ibid, 11. 10 Ibid, 13 11 Greene, K.J. “Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues.” American University Journal of Gender, Social Policy & the Law, vol. 16, no. 3, 2008, p. 375. 12 Greene, K.J. “Right of Publicity, Identity, and Performance K .J. Greene Article 4.” Santa Clara High Technology Law Journal, vol. 28, no. 4, 1 Oct. 2012, p. 870. 13 Collins, Sue. “Making the Most out of 15 Minutes.” Television &New Media, vol. 9, no. 2, Mar. 2008, p. 88, tvnm.sagepub.com. 14 Halbert, Debora. “Who Owns Your Personality” p.44. 15 Ross, Dalton. “Sean Rector Speaks out on Never Being Asked Back for ‘Survivor’.” EW.com, 9 Nov. 2020, ew.com/tv/survivor-marquesas-sean-rector-quarantine-questionnaire/. 16 Greene, K.J. “Right of Publicity” p. 866. 17 Halbert, Debora. “Who Owns Your Personality” p.44. 18 Ibid, 44. 19 Blair, Jennifer L. “Surviving Reality TV: The Ultimate Challenge for Reality Show Contestants.” Loyola of Los Angeles Entertainment Law Review, vol. 31, no. 1, 2010-2011, p. 1-26. HeinOnline. 20 Halbert, Debora. “Who Owns Your Personality” p.44. 21 Rob Has A Podcast. “Black Voices of SURVIVOR Roundtable LIVE - June 24, 2020.” 22 YouTube, YouTube, 24 June 2020, www.youtube.com/watch?v=lqJM_05fFuk. JTiaPhD. “Tribes and Tribulations.” YouTube, YouTube, 27 June 2020, www.youtube.com/ watch?v=K7YK4DjRQwI. 23 Blair, Jennifer L. “Surviving Reality TV” p. 20. 24 Ross, Dalton. “Sean Rector Speaks out on Never Being Asked Back for ‘Survivor’.” EW.com, 9 Nov. 2020, ew.com/tv/survivor-marquesas-sean-rector-quarantine-questionnaire/. 25 Bell-Jordan, Katrina E. “Black.White. and a Survivor of The Real World: Constructions of Race on Reality TV.” Critical Studies in Media Communication, vol. 25, no. 4, Oct. 2008, p. 357. 26 Bell-Jordan, Katrina E. “Black.White,” p. 368. 27 Ibid, p. 353. 28 Survivor Wiki. “Returning Players.” Survivor Wiki, survivor.fandom.com/wiki/Returning_Players. 29 r/Survivor. “r/Survivor - Can Someone Explain to Me What Happened with Joe and Julia from Eoe and What Shes Ranting about? Is Joe Really Racist...” Reddit, Nov. 2020. 30 Eager Tortoise. “The Real Reason Julia Was Upset About Her Edit .” YouTube, YouTube, 6 Dec. 2020, www.youtube.com/watch?v=qCXaYeHROT0. 31 Mendible, Myra. “Humiliation, Subjectivity, and Reality TV.” Feminist Media Studies , vol. 4, no. 3, Jan. 2004. 32 Blair, Jennifer L. “Surviving Reality TV” p.19-20. 33 The Soul Survivors Organization, and J’Tia Heart. “A Petition for Anti-Racism Action by Survivor Entertainment Group.” MoveOn, June 2020, sign.moveon.org/petitions/a-petition-for-anti-racism-action-by- survivor-entertainment-group-2. 34 Ibid. 35 Hauser, Christine. “‘Survivor’ and Other Reality Shows Will Feature More Diverse Casts, CBS Says.” The New York Times, The New York Times, 11 Nov. 2020, www.nytimes.com/2020/11/11/business/media/cbs-reality- tv-diversity.html. 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Survivor Wiki. “Returning Players.” Survivor Wiki , survivor.fandom.com/wiki/Re- turning_Players. Previous Next