Home Is Where The Heart Dwells

The China Fantasy

By George F. Will
Thursday, April 26, 2007

WASHINGTON (more…)

In a dissent yesterday, Chief Justice Roberts wrote, “We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to ‘clearly established’ federal law.” After this comment, he went on to describe the relevant precedents as “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”

It’s being reported that the Ministry of Culture is going to promulgate rules requiring singers and other entertainers to have a license in order to practice their profession.

• Danwei report
• China Media Project report
• Beijing News (新京报) report

Apparently the idea is meeting with some well-deserved ridicule in China. Of course, this doesn’t mean it won’t happen.

So far, none of the commentary I’ve seen has focused on the connection with the Administrative Licensing Law. As I read it (quickly), licensing of singers (for example) is permitted, if at all, only under Para. 3 of Article 12, which allows licensing of services where it is a public service that involves a profession or trade directly relating to public interests and where it is necessary to ascertain the existence of a qualifications or qualities such as special reputation, special conditions, or special skills
(提供公众服务并且直接关系公共利益的职业、行业，需要确定具备特殊信誉、特殊条件或者特殊技能等资格、资质的事项). Of course, “necessary” can mean anything you want it to mean. Still, this seems a bit of a stretch.

乌鲁木齐铁路运输中级法院涉嫌单位受贿罪

　　潘从武 《法制日报》记者 吴亚东

　　“目前，在世界范围内都没有法院涉嫌单位受贿罪成为被告的案例，这个案件的确为世界司法史上的奇闻。”当地的法律专家接受记者采访时说。

　　检察院指控法院涉嫌单位犯罪

　　记者看到，新疆昌吉州人民检察院的起诉书指控，乌铁中院涉嫌非法索取、收受贿赂款451余万元，涉嫌单位受贿罪。法院原院长杨志明、执行局局长蔡红军、原办公室财务会计王青梅涉嫌单位受贿罪、受贿罪、贪污罪出庭受审。
　　公诉机关指控，2000年至2005年五年内，被告乌铁中院接受请托，索取、收受相关中介机构财物，为其谋取利益，以拍卖佣金分成、评估作价费分成及“感谢费”的名义，向乌鲁木齐某拍卖有限公司及某投资咨询有限公司、某价格事务所等单位，索取、收受人民币451万余元，交由被告人王青梅管理。被告人王青梅按杨志明授意，将上述款项在乌铁中院账外、存入以乌铁中院法官协会名义开设的账户或直接将现金使用。
　　2000年1月，乌铁中院原院长杨志明接受乌鲁木齐一公司经理李某的提议，将法院办理案件的拍卖业务交由乌鲁木齐一家拍卖公司独揽，所得佣金三七分成(法院三，公司七)，并安排副院长李某以该院法官协会的名义与拍卖公司签订协议，由执行局局长蔡红军具体负责协调。2001年至2005年7月，被告人蔡红军具体协调负责，被告单位共收受拍卖公司付给的94余万元，由被告人王青梅负责管理。
　　2000年下半年，杨志明召集某价格事务所负责人以及其他中介机构的负责人开会，提出涉案标的物的评估作价费由法院和某价格事务所四六分成(法院四，中介机构六)，一案一结。被告单位乌铁中院直接从执行案款中扣出作价分成，由被告人蔡红军具体负责，五年内乌铁中院共收取人民币284万余元，由王青梅负责管理。
　　此外，被告单位乌铁中院还成立“A类”办案组，负责乌鲁木齐某投资咨询公司申请执行某银行、某集团等案件，并支付该公司经理李某及某律师事务所代理律师胡某(均另案处理)代理费300余万元。被告单位乌铁中院在2002年至2005年间多次收受该公司负责人李某以“感谢费”名义给付的72万元。
　　检方另指控原院长杨志明犯受贿罪、贪污罪，杨曾在2005年以帮助女婿偿还债务的名义收受某集团总经理10万元现金；2005年1月，杨的女儿欲购买轿车，杨要求王青梅从单位的小金库里提出现金10万元给女儿买车，此款一直未还。
　　辩护律师对程序问题提出质疑，法院将择日审理
　　7月4日， 此案开庭审理，几位辩护律师对程序问题产生质疑，乌鲁木齐铁路运输中级人民法院，提出检察机关没有按照法律规定向审理此案的昌吉州人民法院移送所有犯罪事 实的主要证据，使被告人无法享有辩护权，律师无法履行辩护职责，并当庭提出申请，要求公诉机关履行法定职责，依法移送证据，并对本案另行确定开庭时间或延 期审理，法院采纳了辩护人的意见，决定择日开庭审理。
　　记者今天获悉，新疆昌吉州中级人民法院目前已通知辩护律师，此案决定延至7月8日在该院重新开庭审理。

　　辩护律师认为此案属于乱收费乱摊派

　　乌鲁木齐铁路运输中级人民法院的辩护律师、新疆律师协会副会长曹宏认为，乌铁中院的做法虽然恶劣，但其行为似乎应该属于乱收费、乱摊派之类，而不应该作为刑事被告人出现。

　　审判机关一旦被判有罪，是否还有权力行使审判职能？

　　曹宏同时提出，虽然刑法第387条 关于单位受贿罪的规定中，对于国家机关的范围并未排除司法机关，但立法机关、司法机关享有豁免权在国际上是惯例。据他了解，包括法院在内的司法机关作为刑 事被告，被认定为有罪在国际上也几乎没有先例。因此本案并不是一般意义上的普通刑事案件，它的认定将开国内甚至国际司法界之先河，不仅将对法院的社会形象 形成负面影响，更会使我们的法律制度处于十分尴尬的境地。司法机关成为被告单位，接受刑事审判，一旦被判有罪，又是否还有权力去行使其审判职能。一个法官 被判有罪后，会被清除出司法队伍，不能再行使审判权力。那么以此类推，被判有罪的法院应该是被保留还是撤销、解散？法律的依据又是什么？这将成为司法界面 临的一个新挑战、新问题。

　　国家财政拔款单位是否适宜判处罚金？

　　曹宏还说，我国现有的法律规定，对单位犯罪只能判处罚金，而乌铁中院属于国家财政拔款单位，判处罚金就等于把衣服口袋里的钱从左边口袋装进右边口袋，实际上起不到真正的惩罚教育作用。他认为，我国立法机构应该对刑法第387条规定的国家机关包括的内容予以明确解释，将政府、人大等行使国家管理的机关以及司法机关排除在外。

　　学者：法院作为单位受贿的主体符合法律的规定

　 　对此，新疆社会科学院法学研究所副所长王磊表达了自己的观点，他认为，我国现有法律明文规定，国家机关、国有公司、企业、事业单位、人民团体，索取、非 法收受他人财物，为他人谋取利益的，构成单位受贿罪，人民法院作为司法机关更属于国家机关的范畴，既然存在索取、非法收受他人财物，为他人谋取利益的犯罪 事实，就应该构成受贿罪，自然也应该受到刑事审判。而且它作为国家审判机关，是具有独立法人资格的国家机关，具备了被告单位的资格要求。不能因为它具有审 判机关这一相对较为特殊的身份，就不受法律制约，就不承担刑事责任。
　　乌铁中院成为国内首例法院被作为刑事被告起诉的案件，这更表明了我们国家法治建设的不断进步，更加的法制化、民主化。也许以后，还会有包括公安、检察院等其他司法机关成为刑事被告。至于此案的最终判决结果如何，审判机关自然会作出公正的判决。

　　司法人员普通百姓各有说法

　 　乌铁中院成为刑事被告，在新疆一些司法机关也引起了不小的震动，一位不愿透露姓名、多年从事公安工作的基层公安局负责人告诉记者，干了一辈子，见到过多 次司法机关成为民事诉讼被告的案例，倒是第一次听说司法机关作为刑事被告受审，无论从心理上还是法制角度去看，都有些接受不了，如果司法机关被判有罪，这 个司法机关还如何去行使司法权？
　　乌鲁木齐市部分市民接受记者采访时则表示，法律面前人人平等，既然其他国家机关都可以成为刑事被告，包括法院在内的司法机关更应该在法律规定的范围内依法承担刑事责任。

本报乌鲁木齐7月6日电

乌铁中院涉嫌受贿被审引发震荡

以前坐在庄严的审判席上的乌鲁木齐铁路运输中级法院(简称乌铁中院)日前站到了被告席上，这个人民法院因涉嫌单位受贿罪，接受兄弟单位――新疆昌吉回族自治州中级人民法院的审判，并面临刑事处罚，这件案子不仅开了中国司法界的先例，也开了世界司法史的先例。

　　7月8日至9日，新疆维吾尔自治区昌吉回族自治州中级人民法院的大法庭内座无虚席。一场震动国内司法界的首例法院涉嫌单位犯罪案——乌鲁木齐铁路运输中级法院（以下简称乌铁中院）涉嫌单位受贿案公开审理，本案由自治区人民检察院指定在此审理。
　　乌铁中院是否构成单位犯罪，本案的被告单位应该是乌铁中院还是乌鲁木齐铁路法官协会，成为庭审中的辩论焦点。被告人乌铁中院原院长杨志明、执行局局长蔡红军、原办公室财务会计王青梅先后被法警带上法庭受审。
　　考虑到案情较为复杂，法院宣布将择日宣判。

　　检察院称指控法院合法

　　据了解，乌鲁木齐铁路运输中级法院是国家的专门审判机关，审判业务受自治区高级人民法院监督指导，下辖乌鲁木齐、哈密、库尔勒3个铁路运输法院，担负着全局3000多公里铁道线上发生的涉及铁路的刑事和民商事纠纷案件的审理工作。
　　1997年中院新的领导班子组建，由于工作出色，自治区政法委将多起疑难复杂案件指令铁路法院审理，高级法院也授予两级法院全国铁路法院系统内最为宽泛的管辖范围；执行工作接受高级法院指定的大量案件，成为新疆法院系统赫赫有名的“执行铁军”，这一做法被新疆各法院竞相借鉴；乌铁中院曾荣获全国创建精神文明先进单位称号，成为新疆唯一获此殊荣的法院。2000年被自治区高级法院授予集体三等功。2002年，再次被高级法院荣记集体二等功，接连创下新疆法院系统立功受奖的多项纪录。
　 　法院是否可以成为被告，成为焦点。公诉方认为，我国现有法律明文规定，国家机关、国有公司、企业、事业单位、人民团体，索取、非法收受他人财物，为他人 谋取利益的，构成单位受贿罪。人民法院作为司法机关，属于国家机关的范畴，既然存在索取、非法收受他人财物，为他人谋取利益的犯罪事实，就应该构成受贿 罪，自然也应该受到刑事审判。而且它作为国家审判机关，是具有独立法人资格的国家机关，具备了被告单位的资格要求。不能因为它具有审判机关这一相对较为特 殊的身份，就不受法律制约，就不承担刑事责任。
　　8日 当天进行的是法庭调查，首先接受法庭讯问的是被告单位乌铁中院。对公诉机关指控乌铁中院涉嫌单位受贿罪的指控，乌铁中院的诉讼代表人说，收受财物是事实， 但合同是以乌铁中院法官协会的名义签订的，收受的感谢费、赞助费等钱款都进入了法官协会的账户，并没有进入乌铁中院的账户，乌铁中院不应成为本案的被告单 位。
　　在讯问杨志明时，杨志明说公诉机关指控的罪名不属实。他说乌铁中院以法官协会的名义与拍卖公司签订协议，是参照当时其他一些法院的习惯做法，对于公诉机关指控的其个人受贿、贪污事实，他认为都不属实，说这些都是借款，并已全部归还。
　　蔡红军说，相关的决定都是由院党组讨论决定的，他并不知情，他只是按职责负责具体的执行工作。王青梅说，自己只是违反了财务纪律，并没有违反法律，作为法院工作人员，她只是按照院领导的要求，在管理法院财务的同时，代管法官协会的账目而已。

　　法学专家：执法犯法应当严惩

　 　新疆唯一享受国务院特殊津贴的法学专家连振华认为：探讨这个案件首先要搞清楚一个概念，什么叫国家机关？他说国家机关有以下标志：它的机构是国家设置 的、并由国家或地方财政发放工资、人员编制是国家公务员。国家机关包括国家的立法机关、行政机关、各级人大及司法机关，而司法机关又是国家机关的重要组成 部分。
　 　他认为，法院在我国法律体系中属于国家机关的范畴，法律面前人人平等，既然其他国家机关可以成为刑事被告，包括法院在内的司法机关自然也应当依法承担刑 事责任，它不能排除在国家机关之外。绝不能因为它具有审判机关这一相对较为特殊的身份，就不受法律制约，就不承担刑事责任。
　　连振华认为，我国《刑法》第387条明确规定，单位受贿罪是指国家机关、国有公司、企业、事业单位、人民团体索取、非法收受他人财物，为他人谋取利益的行为。
　　关于豁免权，连振华说，只有大使馆、驻华机构、外交人员享有豁免权。在刑法上，所有中华人民共和国的公民和国家机关均不享有豁免权。
　 　另外，连振华说，单位受贿罪的本质不是给单位判刑，单位承担责任的方式是被处罚金，量刑主要是针对单位的主要责任人。此案即便单位被定有罪，乌铁中院仍 然可以行使它的审判权，因为主要责任人该判刑的已经被判刑，审判队伍已经重新调整和充实，行使审判权也就不再有法律障碍。
　　连振华说，他支持检察机关的意见，法院作为一级审判机关执法犯法，比一般的单位犯罪应当予以严惩。
　　本报乌鲁木齐7月12日电

来源：《中国青年报》

庭审焦点：谁是真正的被告

控方称法院也不能免刑律制裁
被告人辩称应由法官协会负责法院无罪

　　昨天，乌鲁木齐铁路运输中级法院涉嫌单位受贿案，继续在新疆昌吉州中级人民法院开庭审理。庭审一直持续至晚上22时才结束法庭辩论，审判长宣布此案将择日宣判。乌铁中院是否构成单位受贿犯罪，本案的被告人应该是乌鲁木齐铁路运输中级法院还是乌鲁木齐铁路法官协会，成为了昨天庭审中控辩双方辩论的焦点。
　　昨天的庭审，至当日下午18时，公诉方共向法庭出示了71份共8组证据，以证明乌鲁木齐铁路运输中级法院涉嫌单位受贿罪，被告人原乌铁中院院长杨志明涉嫌单位受贿罪、受贿罪、贪污罪，被告人乌铁中院执行局局长蔡红军涉嫌单位受贿罪，被告人乌铁中院办公室财务会计王青梅涉嫌单位受贿罪的犯罪事实。
　　对这些证据，被告单位乌铁中级法院以及三名被告人的辩护律师大都表示不予认可，认为上述大量书证都证实的是乌铁法官协会的具体行为，而非乌铁中级法院的单位行为，乌铁中院不应成为此案的被告单位。随后，辩护律师也当庭出示了部分证据并由部分证人出庭作证。
　　在法庭辩论中，公诉机关公诉人强调，被告单位乌铁中院以乌铁法官协会名义收受他人财物，为相关中介机构谋取利益，非法索取、收受他人贿赂450余万元，情节严重，其犯罪事实清楚，证据确实充分，应当以单位受贿罪追究被告单位的刑事责任。被告人杨志明作为乌铁中院院长，决定与相关中介机构达成协议，为单位谋取利益，属于单位受贿直接负责的主管人员，并利用职务之便，为他人谋取利益，个人收受贿赂10.75万元，挪用公款10万元归个人使用，有证据证明有能力归还而拒不归还，并隐瞒挪用的公款去向，其行为应当以单位受贿罪、受贿罪、贪污罪追究其刑事责任，数罪并罚。被告人蔡红军作为该院执行局局长，具体负责单位与某拍卖公司、某价格事务所拍卖佣金、作价费分成370余万元等事宜，属于单位受贿的其他直接责任人员；被告人王青梅直接参与单位受贿，在具体负责管理、收支单位受贿款中不严格履行财务制度，属于单位受贿的其他直接责任人员。被告人蔡红军、王青梅的行为应当以单位受贿罪追究其刑事责任。
　 　公诉人还指出，我国现有法律明文规定，国家机关、国有公司、企业、事业单位、人民团体，索取、非法收受他人财物，为他人谋取利益的，构成单位受贿罪，人 民法院作为司法机关更属于国家机关的范畴，既然存在索取、非法收受他人财物，为他人谋取利益的犯罪事实，就应该构成单位受贿罪，自然也应该受到刑事审判。 而且它作为国家审判机关，是具有独立法人资格的国家机关，具备了被告单位的资格要求。不能因为它具有审判机关这一相对较为特殊的身份，就不受法律制约，就 不承担刑事责任。

对公诉机关的指控，被告单位乌铁中院以及三名被告人的辩护人均作无罪辩护，认为上述被告单位以及被告人均不构成犯罪。

被 告单位乌铁中院的辩护人辩称，公诉人所出示的所有证据中，没有一份涉及到乌铁中院涉嫌单位受贿的犯罪事实，所提到的所有款项均进出于乌铁法官协会的账户， 协议也是由法官协会所签，与乌铁中院没有任何的联系，而乌铁法官协会是独立于乌铁中院外的法人社团，依照法律规定，完全可以自行承担相应的民事、刑事等法 律责任。即使本案有单位受贿的嫌疑，被告单位也应该是乌鲁木齐铁路法官协会，而不是乌鲁木齐铁路运输中级法院。其辩护人还特别指出，以法官协会的名义与拍 卖公司签订协议是当时许多法院共同做法，乌铁中院只是参照仿效而已，如果乌铁中院被判有罪，其他一些法院是否也会因此成为刑事被告？司法机关能否成为刑事 被告单位，对此，合议庭应慎重考虑对待。

被 告人杨志明的辩护律师辩称，如果被告单位乌铁中院单位受贿罪不成立，那么被告人杨志明单位受贿罪也自然不成立。而公诉机关指控杨志明个人的受贿罪、贪污 罪，公诉机关出示的证据均不能证实，无法相互印证，所谓的受贿、贪污款经庭审调查，大都系杨志明向他人以及单位的借款并已全部及时归还。

被告人蔡红军、王青梅的辩护律师也均认为，如果被告单位乌铁中院单位受贿罪不成立，那么两被告人的单位受贿罪也自然不成立，况且两人也都不是本案指控犯罪事实的直接参与者，所以都不构成犯罪。(潘从武 记者吴亚东)

来源：法制日报

各执一词背后：法律体系亟需完善

被告辩护律师：司法界面临新挑战

被告辩护律师、新疆律师协会副会长曹宏认为，司法机关一旦被判有罪，是否还有权力去行使其审判职能，将成为司法界面临的一个新挑战、新问题。

他认为，我国立法机构应该对刑法第387条规定的国家机关包括的内容予以明确解释，将政府、人大等行使国家管理的机关以及司法机关排除在外。

专家：司法机关不能蜕变为不受法律管辖的特权机关

中 国社科院法学所研究员、刑法室副主任刘仁文认为，法院做刑事被告在法律上没有障碍。我国刑法明文规定，国家机关、国有公司、企业、事业单位、人民团体，索 取、非法收受他人财物，为他人谋取利益的，构成单位受贿罪。在当前司法腐败较严重的情况下，更应该依法追究司法机关的法律责任。这样反而能增强公众对审判 活动的信心。绝不能因为它具有审判机关这一相对较为特殊的身份，就不受法律制约，就不承担刑事责任。

司 法部研究室副研究员刘武俊也认为，司法机关成为刑事被告罕见却不乏法理依据。法律面前人人平等，诉讼面前人人平等。不能因为法院是国家审判机关的特殊身份 而可以规避或豁免其法律责任，包括民事法律责任和刑事法律责任。否则，司法权就将变异为不受法律约束的特权，司法机关就将蜕变为不受法律管辖的特权机关。 这无疑与法治国家的司法信条是格格不入的。

司法机关豁免权国际惯例不存在

对于一些法律界人士关于司法机关豁免权的说法，刘仁文认为并不存在司法机关豁免权这个国际惯例。也没有哪个国际公约有类似规定。世界司法史上确实少有法 院和法官被追究刑事责任的，但并不是因为他们享有豁免权的结果，而是因为在多数国家，司法都是独立的，司法队伍的声誉很高，经济也有保证，成为法官是自我 实现的手段。因此他们也鲜有犯罪之举。

法院一旦被判有罪，需要解散或撤销吗？

刘仁文表示，这确实反映出我国刑法体系中尚不完善的一面。他说，目前国内法律界对法人犯罪的研究不多，现行理论建构都是以自然人犯罪视角来奠基的，已跟不上实践。要加强有关研究，尽早完善有关制度建设。

法 院万一被判有罪，根据现行法律，其承担责任的方式是罚金刑和直接负责的主管人员和其他直接责任人接受刑事处罚。刘仁文认为，法院不会被解散也没必要解散。 如果法院被判有罪，法院本身要接受罚金刑，涉案的其他直接责任人则判刑的判刑、开除的开除，有污点的法官都被清退了，这就相当于法人的大脑中有罪的因素已 经消除了，重新充实过的法院已经不再是有罪之身。因此它行使审判权也就不再有法律障碍。法院的公正性也不会再受到质疑。

并非题外话：呼唤法院体制改革

司法公正是法治国家的根本标准，公平、公正、正义是司法的永恒追求。合理科学的司法制度是司法公正的前提，优良的人员素质是司法公正的条件，有效的监督机制是司法公正的保证。

只有彻底解决法院对行政机关的人身依附关系，才能真正实现司法公正。专 家建议将地方法院隶属于地方政权的块状结构改为中央统一行使司法权的条状垂直结构。我国是统一的社会主义国家，因此建立的社会主义法制也应当是统一的。现 行司法管辖区与地方行政管理区是完全重合的，这是司法依附于行政的重要的地域因素。然而，在现行体制下，统一的司法权力被划地为牢的行政区所分割，地方法 院成了地方的法院，在现行体制之下，司法机关人、财、物方面的一切需要都依赖于地方，受制于地方。显然，期望这样处处受制于人的司法机关独立而公正地行使 司法权真可谓是勉为其难。

China’s Christian History by Charles Horner

This is an interesting article that surveys Christianity’s political, economic and culture influence upon China in 19th and 20th century China.

Here is an insteresting article about law school politics.

 ”Bias, the Brain, and Student Evaluations of Teaching “

Merritt, Deborah Jones, “Bias, the Brain, and Student Evaluations of Teaching” (January 2007). Ohio State Public Law Working Paper No. 87 Available at SSRN: http://ssrn.com/abstract=963196

Student evaluations of teaching are a common fixture at American law schools, but they harbor surprising biases. Extensive psychology research demonstrates that these assessments respond overwhelmingly to a professor’s appearance and nonverbal behavior; ratings based on just thirty seconds of silent videotape correlate strongly with end-of-semester evaluations. The nonverbal behaviors that influence teaching evaluations are rooted in physiology, culture, and habit, allowing characteristics like race and gender to affect evaluations. The current process of gathering evaluations, moreover, allows social stereotypes to filter students’ perceptions, increasing risks of bias. These distortions are inevitable products of the intuitive, �system one� cognitive processes that the present process taps. The cure for these biases requires schools to design new student evaluation systems, such as ones based on facilitated group discussion, that enable more reflective, deliberative judgments. This article draws upon research in cognitive decision making, both to present the compelling case for reforming the current system of evaluating classroom performance and to illuminate the cognitive processes that underlie many facets of the legal system.

 

nbsp;http://www.imdb.com/title/tt0251160/trai…

This is an incredible movie.

• (The speech John Q. gives to his son)

I just need to tell you a few things. You always listen to your mother. You understand? Do what she tells you to do. She’s your best friend. You tell her you love her every day.

You’re too young for girls right now, but… there’s going to come a time. When it does, you treat them like princesses. ‘Cause that’s what they are.

When you say you’re going to do something… When you say you’re going to do something, you do it. Because your word is your bond, son. It’s all you have.

And money. You make money if you get a chance, even if you got to sell out once in a while. Make as much money as you can. Don’t be stupid like your father. Everything is so much easier with money, son.

Don’t smoke.

Be kind to people. When somebody chooses you… We talked about this. You stand up. You be a man.

You stay away from the bad things, son, please. Don’t get caught up in the bad things. There’s so many great things out there for you.

I’ll never leave you. I’m always with you. Right there. I love you, son.

The following story is from Leither’s report :

 http://www.typepad.com/t/trackback/45248…

,and, The Record:

 http://media.www.hlrecord.org/media/stor…

Controversy over Ciolli/Cohen “Discussion” Board Continues: “Autoadmit” Profiled on List of “Unethical” Websites

Here; an excerpt:

AutoAdmit bills itself as “the most prestigious law school admissions discussion board in the world”…. “[P]restigious” isn’t the word for AutoAdmit. “Infamous” is more accurate. “Slimy” may be even better.

The site is the creation of Anthony Ciolli, a third-year law student at the University of Pennsylvania, and Jarret Cohen, a 23-year-old insurance agent….[I]t includes hundreds [in fact, thousands] of anonymous posts that insult women, gays, blacks, Jews and Asians, frequently disparaging individuals by name. Messages are sometimes outright libel, including false claims about sexual activity and STDs, and accusations of unethical activities. To the targets’ dismay, the comments bubble up through the Internet into the public domain via Google’s powerful search engine. And many potential employers of law school graduates routinely check Google for information on a candidate. Thanks to AutoAdmit, what they will find will sometimes be racist, sexist or obscene gossip.

Cohen says the site merely provides a forum for free speech. “I want it to be a place where people can express themselves freely, just as if they were to go to a town square and say whatever brilliant or foolish thoughts they have,” Cohen said in a recent Washington Post interview. Ciolli was quoted as saying that he “almost never censor[s] content, no matter how abhorrent it may be” because he is a “strong believer in freedom of expression and the marketplace of ideas.”

This transparent rationalization for the site’s irresponsible management is simultaneously infuriating and hilarious. In the “town square” one must be physically present to be heard, which means that the source of offensive and insulting speech directed at an individual must take responsibility for his or her actions. Not on AutoAdmit, however; those brave warriors of free expression can remain anonymous, because Ciolli and Cohen let them. Nor did the speeches in the town square end up on a web search engine like Google, where they could be seen by anyone in the world with a computer, downloaded, copied, and distributed to humiliate and harm an innocent victim of a verbal attack.

Comparing AutoAdmit to the town square is like comparing the late Anna Nicole Smith to Mother Theresa. What the site really resembles is the walls of a particularly busy public toilet where low-lifes anonymously inscribe filthy graffiti about others. Unlike the operators of most such cesspools of anonymous “free expression,” however, these two actually boast that they never wash the walls, encouraging more and more irresponsible content….

In mid-February, several frequenters of the site organized a contest on a separate site to name the “hottest” female student at a “Top 14″ law school and used AutoAdmit to publicize the contest and the involuntary “entrants.” A group of boorish University of Virginia Law students posted dozens of photos of their eight female classmates, which all ended up on AutoAdmit. None of them consented to having their pictures posted.

Then the AutoAdmit’s message board was bombarded with salacious comments about the women, often referencing them by name. The Virginia Law Weekly reported that in addition to criticizing the co-eds’ physical attributes on the discussion threads, AutoAdmit members continually referred to some of these UVA Law students as “whores,” “sluts,” and worse. One anonymous AutoAdmit poster wrote about performing sex acts on them, while another told them to “get raped.” Naturally, Ciolli and Cohen did nothing. Well, that’s unfair: Ciolli commented on the girls himself.

Finally, the “Hottest Female” contest so dominated AutoAdmit and was focusing so much criticism on the site that Ciolli persuaded the organizers to authorize the removal of its posts. But to do so was the decision of the contest’s originators, not the AutoAdmit administrators, and the damage to the women who were exhibited and derided cannot be undone. Meanwhile, more anonymous bile pours onto the site daily. The decision to ask the contest to leave was a PR move, not a change in policy. Ciolli told the Washington Post that he thought he deserved a “gold star,” even though he encouraged the competition by participating in the on-line assessment of the female law students.

[Aside to whatever state bar association Ciolli eventually applies to join: Watch out. This guy is an ethics violation waiting to happen.]

As I have heard from numerous law students, however, it is well-known that Mr. Ciolli and Mr. Cohen remove threads all the time when it suits them. Indeed, in one instance, Mr. Ciolli, when confronted by one of his Penn professors, had a disgusting thread about the professor removed within a half hour. For obvious reasons, Mr. Cohen and especially Mr. Ciolli have been trying to rewrite the history of their moderation policies, with Mr. Ciolli going so far as to proffer a fake “resignation” from the discussion board (that the “resignation” was meaningless is suitably exposed in the comments section here). One female student who had been harassed and defamed on the discussion board wrote to me reporting that in the wake of the Washington Post story (in which her travails with Autoadmit had not been mentioned) Mr. Ciolli e-mailed her school’s Dean of Students

and told her he is unable to do anything about the postings about me because I never gave him my name. However, I e-mailed him a number of times, gave him my name, and gave him direct links to the postings and each time he responded, he was extremely rude, told me not to contact him again, and said there is nothing he can do about the postings. So, it looks like he is now making misrepresentations to school administrators. I also find it odd that he is responding to the problem one year later.

A group of students at Yale Law School, meanwhile, is compiling a dossier on Mr. Ciolli’s unethical conduct for submission to state Bar Character & Fitness Committees.

Autoadmit Lifts Veil of Anonymity

After weeks of controversy following mainstream media coverage on sexually harassing content, sharply-worded condemnations from law school deans, and the convening of a panel discussion at Harvard Law School, the infamous Autoadmit message board ceased to hide its posters’ anonymity Monday. Visitors were finally able to see which posters were using multiple usernames, and other posters were outright identified by their name or school.

Some speculated that a series of identical form letters from consumer advocacy outfit Reputation Defender had finally done the trick, while others suggested that it was more likely that monkeys had begun to fly out of the rear end of Michael Fertik, the inept HLS grad at the helm of Reputation Defender. The real consensus was that site owner Jarrett Cohen had finally broken down after the five thousandth thread containing “white girls with asian guys” jokes, and had finally decided to open the Pandora’s box of the message board’s user information which he had been secretly collecting.

The truth about Autoadmit’s posters didn’t take long to discover.

“Yeah, there are only six people posting,” admitted Cohen by email this week. “You can see why I didn’t want it to get out.”

The new user profile information showed that only six individuals are responsible for 100% of the board’s often disturbing content, with some taking on upwards of 50 usernames and arguing with themselves for hours late at night about whether bottom 1/3 at Georgetown really does get biglaw or are just pretending, how many drug arrests it takes to have a real Character & Fitness problem for the bar, or how many seconds it would take University of Texas Professor Brian Leiter to start rationalizing his school’s drop in the US News rankings.

An obese grandmother in Dubuque, Iowa was revealed as the force behind posters like “pensive,” “bigpapapump,” “Mandy,” “Mind the Gap,” and two dozen more. Female posters “Rowan,” “saltybabe,” “rasquach” and “sugarywitch” were all revealed to be the work of Southwestern School of Law 3L Kevin McDonald, a 41-year old former security guard.

“IAMAREFRIGERATOR” turned out to be an actual refrigerator in Albuquerque, New Mexico.

“WHOOSH!!” said the poster, when contacted for a comment.

In the most surprising turn of events, the identity of one poster turned out to be a member of the elite law school community. The infamous, obsessive poster “superstudyasian” was revealed to be no other than Yale Law School Dean Harold Koh.

“I am appalled by this accusation,” said Dean Koh when asked to respond by telephone. “I am much too busy as dean to post thousands of threads praising those who, like me, have loving, committed relationships composed of an Asian male and a Caucasian female. You might expect these antics from David Lat, but not myself.”

Koh then whispered, “WGWAG,” and hung up the phone.

As the Record went to print Wednesday, the Internet Speech panel hosted by the Berkman Center was still on, despite uninviting Autoadmit administrator Cohen and Michigan law professor and gadfly Ann Althouse the week before the panel.

“This will be the best panel to ever uninvite the people who might say something interesting,” said Professor Charles Nesson Wednesday. “I may just uninvite myself.”

Introduction to Roberto Unger’s Politics

By Zhiyuan Cui

 http://www.robertounger.com/cui.htm)

Roberto Mangabeira Unger’s project of developing a “constructive social theory” is breathtaking.

He defends the “radical democratic project.” But his definition of “radical project” is much broader and more inclusive than most other currently available definitions: “John Stuart Mill, Alexander Herzen, Karl Marx, P.J. Proudhon and Virginia Woolf were all champions of the cause.”

He is influenced by Marxism, especially those Marxist theories which emphasized the autonomy of politics. But he is not a Marxist, because he refuses to entangle transformative aspirations in determinist assumptions.

He argues for “disentrenchment,” “destabilization rights” and “negative capability.” But he does not belong to the school of “deconstruction,” because his own “constructive” theory recognizes that the degree of our freedom with regard to social structure is itself a variable up for grabs in history.

He is not an antiliberal, but he calls his theory “superliberal”, in the sense of realizing the highest inspirations of liberalism by transforming its conventional institutional commitments.

How does he reach such an unusual intellectual standpoint? What is the practical relevance of his “constructive social theory”?

Without trying to do full justice to this most ambitious social-theoretical work of the late 20th century, my introduction seeks to highlight some salient features of Unger’s social theory in the hope that it will motivate readers to study the text on their own.

Society as Artifact

Unger’s social theory can be understood as an effort to carry the idea of “society as artifact” to the extreme. It means that “society is made and imagined, that it is a human artifact rather than the expression of an underlying natural order.”

The idea of “society as artifact” has its origin in the European Enlightenment. But its full implication has only been worked out half-way. The road of taking the idea of “society as artifact” to the end has been blocked by the countertendency within modern social theories to develop a “science of history.”

The intellectual reason for this countertendency is too complicated to be dealt with fully here. For now, we only need to remember that modern social thought was born in the background of the secularization of Christianity. The idea of “society as artifact” implies, at the minimum, that human history is not subject to divine providence. Rather, people can make and remake society at their will. There are many expressions of this idea of human agency in early modern social thought. One prominent example is the argument by Hobbes that “natural right” is not derived from “natural law.” In this way, modern natural rights and social contract theories started to strip away the theological content of the medieval conception of natural law and sought to develop social theory based on the idea of “society as artifact.” Another famous example is Vico’s argument that amid the “immense ocean of doubt” there is a “single tiny piece of earth” on which we can stand on firmly: this world of civil society has been made by man.

However, modern social thought failed to take the idea of “society as artifact” to the hilt. Some people believe the reason for this failure has to do with modern thinkers’ overreaction to the demise of Christian eschatology. When modern thinkers abandoned the Christian eschatology, they still wanted to develop a “philosophy or science of history” as if they desired to show that modern thought can answer any question raised by Christianity. In a sense, modern social thought entered a pathway of “reoccupying” the positions of the medieval Christian schema of creation and eschatology. In this light, Tocqueville’s view on democracy’s irresistible march as a divine decree may be more than a simple metaphor.

Whether this explanation is historically true is a controversial topic which goes beyond the reach of this introduction. However, we can be sure that the search for the “law of history” had led modern social theory astray. What Unger calls “deep-structure social theory” is the star example of the effort of modern social thought to develop a “science of history”, rich in lawlike explanations. Though Unger chose Marxism to exemplify “deep-structure social theory”, he made it clear that Durkheim and Weber could also serve as good illustration. According to Unger, deep-structure social analysis is defined by its devotion to three recurrent theoretical moves. The first move is the attempt to distinguish in every historical circumstance a formative context, structure, or framework from the routine activities this context helps reproduce; The second move is the effort to represent the framework identified in a particular circumstance as an example of a repeatable and indivisible type of social organization such as capitalism; The third one is the appeal to the deep-seated constraints and the developmental laws that can generate a closed list or a compulsive sequence of repeatable and indivisible frameworks.

According to Unger, deep-structure social theory is in an advanced state of disintegration. Its commitment to the above-mentioned three moves is becoming increasingly discredited by historical and contemporary practical experience. One response to this discredited deep-structure social theory is “positivist social science”, which denies all together the distinction between “formative context” and “routine activities” within the context. But Unger argues that positivist social science is no way out. For the rejection of the context–routine distinction leads social scientists to study routines of conflict and compromise within the existing institutional and imaginative context only. As long as this formative context is stable, its influence upon routine activities can be forgotten. The study of voting behavior of different groups in a stable social framework is an example in case. Thus, positivist social scientists miss the conflict over the formative context–the fundamental institutional and imaginative structure of social life. They end up taking the existing formative context for granted, seeing society through the eyes of a “resigned insider.”

Caught between the pretense of “deep-structure social theory” to be ” the science of history” on the one hand and the positivist social science on the other, modern social thought worked out both “partial dissolutions and partial reinstatements of the naturalistic view of society”. Unger’s theoretical work, in a nutshell, is an effort to carry the idea of “society as artifact” all the way through, to develop a radically antinaturalist, antinecessitarian social theory. In this sense, Unger’s social theory is a double rebellion against classical social theory, with its functionalist and determinist heritage, as well as positivist social sciences.

Against Structure Fetishism and Institutional Fetishism

Unger rejects “deep-structure social theory” and “positivist social science”, but he is not a nihilist. He preserves the first move of deep-structure theory — the distinction between “formative contexts” and “formed routines” — while rejecting its two other moves, i.e., the subsumption of the formative context under an indivisible and repeatable type and the search for general laws governing such types. This selective approach distinguishes Unger different not only from the conventional Marxists who wholeheartedly embrace deep-structure social theory as well as from the positivist social scientists who denies the context-routine distinction. It also distances him from some nihilist practice of postmodern “deconstruction”[1]

The distinctive conceptual instrument for Unger’s theoretical innovation is his insight into “formative contexts” and the degree of their revisability or disentrenchment vis-à-vis human freedom. As Perry Anderson well observed, the notion of “formative context” is “presented expressly as an alternative to the mode of production in the Marxist tradition, rejected as too rigid and replicable. A formative context is something looser and more singular–an accidental institutional and ideological cluster that regulates both normal expectations and routine conflicts over the distribution of key resources”[2]. Though we can never escape completely the constraints of “formative context,” the social formative context itself may be changed by human will to become more open to challenge and revision. Unger argues that this degree is itself a variable up for grabs. For example, hereditary castes in ancient India, corporately organized estates in feudal Europe, social classes today and “parties of opinions” tomorrow mark the presence of increasingly open or “plastic” forms of formative contexts. Unger develops the notion of “negative capability” to signify the relative degree of openness and disentrenchment of formative context.

The term “negative capability” originally comes from a letter of John Keats, dated December 28, 1817. Unger’s usage generalizes and transforms the poet’s meaning. It denotes the active human will and capacity to transcend every given formative context by negating it in thought and deed. To increase “negative capability” amounts to creating institutional contexts more open to their own revision–so diminishing the gap between structure and routine, revolution and piecemeal reform, and social movement and institutionalization. Unger values the strengthening of negative capability both as an end in itself–a dimension of human freedom–and as a means to the achievement of other goals. For he holds there to be a significant causal connection between the disentrenchment of formative contexts as their success at advancing along the path of possible overlap between the conditions of material progress and the conditions of individual emancipation.

Therefore, Unger’s distinctive theoretical standpoint is characterized by two-sided view of formative contexts: while recognizing the reality of constraints of formative context, he deprives these contexts of their aura of higher necessity or authority. He emphasizes that “to understand society deeply” requires us to “see the settled from the angle of the unsettled”. This perspective gives rise to the critique of structure fetishism and institutional fetishism.

According to Unger, structure fetishism denies that we can change the quality of formative context. Here, the quality of a formative context is characterized by its degree of openness to its own revision. Structure fetishism remains committed to the mistaken thesis that “a structure is a structure”. A structure fetishist may be a skeptical postmodern relativist, who gives up on universal standards of value and insight. Alternatively, a structure fetishist may be a nihilist, who’s only task is to deconstruct everything all the time. However, both theoretical positions are pseudo-radical, because they end up subscribing to the view that since everything is relative, all we can do is to choose a social context and play by its rules, rather than changing its quality and character. Unger’s thesis about the relative degree of revisability or disentrenchment of formative contexts provides a solution to this dilemma of postmodernism-turned conservatism. The way out here is to recognize that when we loose faith in an absolute standard of value, we do not have to surrender to the existing institutional and imaginative order. We can still struggle to make institutional and discursive contexts that better respect an spiritual nature, that is to say our nature as context-transcending agent.

You may wonder about the metric of this “degree of openness and revisability”. It is measured by the distance between structure-reproducing routine activities and structure-challenging transformative activities. The less this distance, the more open and revisable a formative context is. When ” empowered democracy”–Unger’s preferred name for his radical project– enters into more and more spheres of social life, our sense of relative “degree” of openness and revisability of the social context will be formed and reformed.

Here, we touch upon a crucial point of Unger’s social theory. Unlike most other contemporary social theorists and liberal political philosophers, Unger does not have the obsession of searching for “neutrality”. For him, the mirage of neutrality gets in the way of the more important objective of searching for arrangements that are friendly to a practical experimentalism of initiatives and a real diversity of experiences. We cannot distinguish within human nature attributes that are permanent and universal from others that vary with social circumstance. Therefore, it will be futile to try to present an institutional order as if it is the expression of a system of rights supposedly neutral among clashing interests and conflicting visions of the good[3] . What really matters is to enlarge our capabilities of diminishing the distance between the reproductions and revisions of our practice and arrangements. We thus help fulfill the requirements for those forms of material progress that can coexist with the liberation of individuals from rigid social divisions and hierarchies.

If by overcoming “structure fetishism” Unger urges us to look for more open social context in an abstract level, then, his critique of “institutional fetishism” works in the same direction in a more concrete way. Institutional fetishism, for Unger, is “the imagined identification of highly detailed and largely accidental institutional arrangements with abstract institutional concepts like the concept of a representative democracy, a market economy, or a free civil society. The institutional fetishist may be the classical liberal who identifies representative democracy and the market economy with a makeshift set of governmental and economic arrangements that happen to have triumphed in the course of modern European history. He may also be the hard-core Marxist who treats these same arrangements as an indispensable stage toward a future, regenerate order whose content he sees as both preestablished and resistant to credible description. He may even be the positivist social scientist or the hard-nosed political or economic manager who accepts current practices as an uncontroversial framework for interest accommodation and problem solving”[4].

One prominent example of institutional fetishism is what Unger describes as “the mythical history of democracy”: according to this mythical viewpoint, “the trials and errors of modern political experience, and the undoubted failure of many proposed alternatives, have confirmed that the emergent institutional solutions were much more than flukes.”[5]

Contrary to this “mythical history”, Unger insists that we see how accidental are the institutional arrangements of contemporary representative democracies and industrial economies. For example, the liberal constitutionalism of the 18th century sought to grant rule to a cadre of politically educated and financially secure notables, fully able to safeguard the polities they governed against mob rule and seduction by demagogues. Thus, this early liberal constitutionalism by no means should be viewed as the unique embodiment of the real meaning of democracy. Rather, it represented a historical legacy in the modern constitutionalism that favors deadlock and fragmented power. Both the American presidential regime of “checks and balances” and the need to base political power upon broad consensus within the political class in parliamentary regimes exemplify this legacy. In contrast, Unger propose a new constitutional program, i.e., a constitutional style that accelerates democratic experimentalism and breaks away from eighteenth-century constitutionalism by combining a strong plebiscitarian element with a broad channels for the political representation of society. In fact, the “dualistic constitutions” in the interwar period(1918-1939) and the Portuguese Constitution of 1978, already hinted at the possibility of constitutional arrangement more open to democratic participation.

Another prominent example of institutional fetishism is what Unger described as “the “mythical history of private rights”. According to this mythical history, the current Western legal system of property and contract embodies the built-in logic of market economy. Contrary to this view, Unger insists that a market economy has no unique set of built-in legal-institutional arrangements. The current Western system of property and contract is less a reflection of deep logic of social and economic necessity than a contingent outcome of political struggles. It could have assumed other institutional forms. The deviant cases and tendencies within the current law of property and contract, such as “reliance interests” not dependent on fully articulated will of contracting partners, already suggest elements of an alternative legal-institutional ordering of the market economy. A major part of Unger’s constructive social theory is devoted to develop alternative systems of property and contract by redirecting and restructuring the deviant tendencies within the current private rights system.

We should notice that Unger’s critique of “mythical history of democracy” and “mythical history of private rights” is only a part of his analysis of institutional genealogy–”the genesis of formative contexts”, which includes genesis of the work-organization complex,private-rights complex and governmental-organization complex, as well as the genesis of communist formative contexts in the Soviet Union and China. In each case, Unger “makes familiar strange” , that is, he shows how accidental these institutions were historically generated and evolved, and they looks “natural” in retrospect only to the uncritical mind will .

The overall theme of Unger’s genealogy is the falsehood of institutional fetishism: to show that existing institutional arrangement is only a subset of much larger possibilities. Unger emphasizes this in his treatment of “petty commodity production”: the economy of small-scale, relatively equal producers, operating through a mix of cooperative organization and independent activity. Both the positive social sciences and Marxism consider “petty commodity production” doomed to failure, because it precludes the economies of scale in production and exchange vital to technological dynamism. Unger sees “petty commodity production” differently. He neither accepts nor rejects it in its unreconstructed form. Rather, he tries to “rescue” petty commodity production by inventing new economic and political institutions. For example, we can satisfy the imperative of economies of scale by finding a “method of market organization that makes it possible to pool capital, technologies and manpower without distributing permanent and unqualified rights to their use”. This solution amounts to the new regime of property rights in Unger’s programmatic proposal, discussed below. We can invent new institutions rescuing from the old dream of yeoman democracy and small scale independent property the kernel of a practical alternative, open to economic and technological dynamics as well as to democratic ideals. Indeed, one of the most fascinating thing about Unger’s discussion of the new forms of a market economy is connections he establishes between these institutional problems and the emerging advanced practices of vangardist production today. Here again, Unger helps us realize that an inherited and established arrangements do not reflect the higher order of “natural law of human history”. We can transform them if we want to. By doing so, we can remain faithful to the progressive impulse of democratic experimentalism.

Programmatic Alternatives Today

Unger’s critique of structure fetishism and institutional fetishism is closely related to his programmatic arguments, a strong bond unites the explanatory and the programmatic sides of Unger’s “constructive social theory”. As Unger puts it, the programmatic arguments of his social theory reinterpret and generalize the liberal and leftist endeavor by freeing it from unjustifiably restrictive assumptions about the practical institutional forms that representative democracies, market economies, and the social control of economic accumulation can and should assume.

In today’s world, Unger’s programmatic arguments are urgently needed. We are witnessing the pseudoscientific thesis of convergence gaining intellectual respectability worldwide. This convergence thesis stipulates that market economies and representative democracies in the world are converging to the single best set of institutions–some variation on the established arrangements of the North-Atlantic democracies. The convergence thesis takes the form of “neoliberalism” in the third world and the former Soviet-bloc countries. It is sometimes also called the “Washington consensus.” Carried to the hilt, this convergence thesis is “institutional fetishist” to its core. It even downplays the diversity of institutional arrangements in the West. As it hails, for example, the fading of differences among the American, German, and Japanese styles of corporate governance, it fails to identify, or to sympathize with, other differences that are in the process of appearing.

In its most abstract and universal form, neoliberalism or “the Washington consensus” is the program committed to orthodox macroeconomic stabilization, especially through fiscal balance, achieved by containment of public spending and increases in the tax take; to liberalization by integrating into the world trading system and its established rules; to privatization, understood both more narrowly as the withdrawal of government from production and more generally as the adoption of standard Western private law; and to the deployment of “social safety-nets” designed to counteract the unequalizing effects of the other planks in the orthodox platform.

What is striking about this dominant version of neoliberalism is that it incorporates the conventional social-democratic program of social insurance as its integral part. This fact shows clearly that the social-democratic ideal has long lost its radical transformative inspiration. Instead of challenging and reforming the institutions of the existing forms of market economy and representative democracy, the social-democratic program merely seeks to moderate the social consequences of structural divisions and hierarchies it has come to accept. Conservative social democracy defends the relative privileged position of laborforce in the capital-intensive, mass-production industries, at the social cost of exclusion of large amount of outsiders in the disfavored, disorganized “second economy”. If the division between insiders and outsiders is already a formidable problem in European social democracies, its proportions and effects became far more daunting in countries like Brazil and Mexico. Compensatory social policy is unable to make up for extreme inequalities, rooted in stark divisions between economic vanguard and economic rearguard.

Because neoliberalism incorporates the social-democratic program, Unger’s programmatic alternative to neoliberalism is at the same time an institutional alternative to social democracy. It seeks to overcome economic and social dualism in both rich and poor countries by making access to capital more open and decentralized and by creating political institutions favorable to the repeated practice of structural reform.

The main reason for the existence of economic and social dualism–the division between insiders and outsiders of the advanced industrial sectors in both rich and poor countries–is the privilege current arrangements affords to the insiders. However substantial the interests that pit the workers in advanced sector against their bosses may be, they nevertheless share common interests against the interest of the disorganized working people(outsiders) at large. Conservative social democracy defines itself today largely by contrast to a managerial program of industrial renovation. This program wants to strengthen the freedom of capital to move where it will and to encourage cooperation at the workplace.It manages the tensions between these two commitments by devices such as the segmentation of the laborforce.Conservative social democracy responds by seeking to restrain the hypermobility of capital through something close to job tenure and to multiply the recognition of stakes and stakeholders(workers, consumers, and local communities as well as shareholders) in productive enterprises. The result, however, is to aggravate the complaints of paralysis and conflict that helped inspire managerial program while accepting and reinforcing the established divisions between insiders and outsiders. The intuitive core of Unger’s program of economic reconstruction lies in the attempt to replace the demand for job tenure by an enhancement of the resources and capabilities of the individual workers-citizen and to substitute a radical diversification of forms of decentralized access to productive opportunity for the stakeholder democracy of the conservative social democracy.The first plank in this platform leads to the generalization of social inheritance through social-endowment accounts available to everyone. The second, to the disaggregation of traditional private property and the recombination and reallocation of its constitutive elements. Both planks, in turn, need sustenance from institutions and practices favoring the acceleration of democratic politics and the independent self-organizations of civil society. The traditional devices of liberal constitutionalism are inadequate to the former just as the familiar repertory of contract and corporate law is insufficient to the latter.

Unger draws out the affirmative democratizing potential in that most characteristic theme of modern legal analysis: the understanding of property as a “bundle of rights”. He proposes to dismember the traditional property right and to vesting its component faculties in different kinds of rightholders. Among these successors to the traditional owner will be firms, workers, national and local government, intermediate organization, and social funds”. He opposes the simple reversion of conventional private ownership to state ownership and workers cooperative, because this reversion merely redefines the identity of the owner without changing the nature of “consolidated” property. He argues for a three-tier property structure: the central capital fund, established by the central democratic government for ultimate decision about social control of economic accumulation; the various investment funds, established by the central capital fund for capital allotment on competitive basis; and the primary capital takers, made up of the teams of workers, engineers and entrepreneurs. Underlying this scheme is a vision of the conditions of economic growth and of the terms on which economic growth can be reconciled with democratic experimentalism. In this vision, the central problem of material progress is the relation between cooperation and innovation. Each needs the other. Each threatens the other. Our work is to diminish their mutual interference.

We can appreciate Unger’s ideas about “disintegrated property” from the standpoints of both the radical-leftist tradition and the liberal tradition. From the perspective of radical-leftist, Unger’s program is related to Proudhon’s petit-bourgeois radicalism. Proudhon was a forerunner of the theory of property as a “bundle of rights” and his classic work What is Property? provides a thorough critique of “consolidated property.” It is important to realize that, in its economic aspects, Unger’s program amounts, in a sense, to a synthesis of Proudhonian, Lassallean and Marxist thinking. From the petit bourgeois radicalism of Proudhon and Lassalle, he absorbs the importance of the idea of economic decentralization both for economic efficiency and political democracy; from the Marxist critique of petit bourgeois socialism, he comes to realize the inherent dilemmas and instability of petty commodity production. This realization stimulates Unger to reverse the petit bourgeois radicalism’s traditional aversion to national politics. He develops proposals for decentralized cooperation between government and business. he connects these proposals with reforms designed to accelerate democratic politics through the rapid resolution of impasse among branches of governments to heighten and sustain the level of institutionalized political mobilization and to deepen and generalize the independent self-organization of civil society.

From the perspective of liberal tradition, Unger’s program represents an effort to take both economic decentralization and individual freedom one step further. In today’s organized, corporatist “capitalist” economies, economic decentralization and innovation has been sacrificed to the protection of the vested interests of capital and labor in advanced industrial sectors. Unger’s program remains more true to the liberal spirit of decentralized coordination and innovation than does the current practice of neoliberalism and social democracy. Conventional institutionally conservative liberalism takes absolute, unified property right as the model for all other rights. By replacing absolute ,consolidated property rights with a scheme for reallocation of the disintegrated elements of property among different types of rightholders,, Unger both rejects and enriches the liberal tradition. He argues that the Left should reinterpret rather than abandon the language of rights. He goes beyond both Proudhon-Lassall- Marx and the liberal tradition by reconstructing a system of rights, which includes four types of rights: immunity rights, market rights, destabilization rights and solidarity rights.In this sense, we can understand why Unger sometimes names his program “superliberal” rather than antiliberal. Any reader of John Stuart Mill’s Autobiography would recognize that “superliberalism”–realizing liberal aspirations by changing liberal institutional forms–recalls Mill’s new thinking after his mental crisis.Unger forces us to confront the difference between a liberalism that, through its emphasis upon cumulative and motivated institutional tinkering, keeps democratic experimentalism, and one that remains satisfied with tax-and-transfer style redistribution within an order it leaves unchallenged.

Thus, we can view Unger’s programmatic alternative as a synthesis of the radical-leftist tradition and the liberal tradition. This synthesis bears in at least three ways on the future of democratic project.

First, the synthesis of Proudhon-Lazily-Marx and the liberal tradition gives promise for developing a theory of “empowered democracy”[6]. It represents an economic and political alternative to neoliberalism and social democracy, with great appeal for a wide range of liberals, leftists and modernist visionaries. In our post-Cold War era, it reopens the horizon of alternative futures. It forcefully rescues us from the depressing sense that the history is ended.

Second, this synthesis promises a reorientation of the strategy of social transformation of the Left in the West and the Third World. One embarrassment of the Marxist-inspired Left is the historical fact that the working class has never become a majority of the population. Fear of the left and resentment at the organized working class have often divided the “middle classes” from industrial and agrarian workers and turned them toward the right. Unger’s synthesis of Proudhon-Lazily-Marx and the liberal tradition may prove to be a useful mobilizational tool for a more inclusive alliance for radical democratic transformation.

Third, this synthesis gives a new meaning to the idea “society as artifact”. Unger’s social theory represents an effort to theorize “jumbled experience”. He draws upon, and attempts to encourage, forms of practical and passionate human connection that recombine activities traditionally associated with different nations, classes, communities and roles. Through this worldwide recombination and innovation, our collective sense of the possible has broadened. This enlarged sensibility in turn helps sustain the institutional arrangement in Unger’s program of empowered democracy. Thus, Unger’s institutional program and personalist program reenforce each other.

· · ·

This book is a selection from Unger’s three-volume Politics, a Work in Constructive Social Theory. The first part of the selection draws from the first volume of Politics, which spells out the basics of Unger’s “radically antinaturalist social theory” and shows how the criticism of classical social theories and contemporary social sciences generates materials for an alternative practice of social understanding. The second part of the selection is from the second and the third volumes of Politics, which work out, through wide-ranging historical examples, the major explanatory themes of Politics: the relation between the openness and flexibility of social formative contexts and the development of our collective capacity to produce or to destroy. The third part of the selection takes material from the second volume of Politics, which presents Unger’s programmatic proposals to reconstruct our economic and political institutions. The last part of the selection is from the first and the second volumes, which means to illustrates how Unger’s institutional program and “cultural-revolutionary” personalist program reenforce with each other.

Several reviewers of Unger’s work, Richard Rorty among them, have emphasized that Unger is a Brazilian citizen. In Rorty’s words, “Remember that Unger — though he has put in many years of hard work here in North America, changing the curricula of many of our law schools and the self-image of many of our lawyers– is a man whose mind is elsewhere. For him, none of the rich North Atlantic democracies are home. Rather, they are places where he has gathered some lessons, warnings, and encouragements.” Reading this sentence, I cannot help recalling Max Weber’s remark that inspiration for many great cultural accomplishments has often come from the periphery of a civilization.

In Unger’s description of Brazil of 1985, we find him saying “Indefinition was the common denominator of all these features of the life of the state… All this indefinition could be taken as both the voice of transformative opportunity and the sign of a paralyzing confusion.” These words could equally describe today’s world as a whole. I see today’s China as Unger does Brazil. Is Perry Anderson right in seeing in Unger a “philosophical mind out of the Third World turning the tables, to become synoptist and seer of the First”?[7] May the hope of empowered democracy for mankind reside in the large, but marginalized, countries like Brazil, China, India and Russia? We all are living in a time when a great chance of democratic transformation of all aspects of social life coexists with great confusion in our explanatory and programmatic ideas. It was in this condition of need, confusion and hope that I first came to read Unger’s work three years ago. I find his social theory so inspiring that I feel as though it were for me he had written. It is my hope that my feeling will be shared by you, the reader, after you put down this volume of selections from Unger’s Politics.

[1] Richard Rorty nicely captures Unger’s theoretical position in his discussion of Castoriadis and Unger: “Castoriadis and Unger are willing to work with, rather than deconstruct, the notions that already mean something to people presently alive-while nonetheless not giving the last word to the historical world they inhabit.” See Richard Rorty, “Unger, Castoriadis, and the Romance of a National Future,” Critique and Construction: A Symposium on Roberto Unger’s Politics (New York: Cambridge University Press, 1987).

[2] Perry Anderson, “Roberto Unger and the Politics of Empowerment”, in his A Zone of Engagement, p.135, Verso, 1992.

[3] In his comparative study of Rawls, Habermas and Unger, Geoffrey Hawthorn points out that the search for neutrality looms large in both Rawls and Habermas. See Geoffrey Hawthorn, ” Practical Reason and Social Democracy: reflections on Unger’s Passion and Politics”, in Robin Lovin and Michael Perry, ed., Critique and Construction: A Symposium on Roberto Unger’s Politics, Cambridge University Press, 1988.

[4] Roberto Mangaberira Unger, Social Theory: Its Situation and its Task, pp. 200-201., Cambridge University Press, 1987.

[5] Roberto Mangabeira Unger, False Necessity, p.211, Cambridge University Press, 1987.

[6] Unger’s forthcoming book Democratic Experimentalism develops the theory of empowered democracy in detail.

[7] Perry Anderson, op.cit, p.148.