Every once in a while, we come upon an event of seemingly minor import which, on reflection, turns out to…
Every once in a while, we come upon an event of seemingly minor import which, on reflection, turns out to betoken deep and problematic truths about our culture. The “Patenting of Life” decision is such a significant event.
On June 16, 1980, the Supreme Court of the United States ruled that a living microorganism was patentable matter, under the provision of patent laws enacted by Congress in 1952. In 1972, Ananda Chakrabarty, a microbiologist at the University of Illinois, had filed patent application, assigned to the General Electric Company, asserting multiple claims related to a novel bacterial strain that he had obtained with the aid of techniques of genetic engineering, a strain capable of degrading many components of crude oil and thus potentially useful in the biological control of oil spills. In addition to readily granted process claims for the method of producing the bacterium, and claims relating to the mode of carrying such bacteria to water-borne oil spills, Chakrabarty claimed patent rights to the bacteria themselves. This last claim, at first rejected by the patent examiner and then by the Patent Office Board of Appeals, was finally granted on appeal by the United States Court of Customs and Patent Appeals in 1979, in the decision affirmed by a narrow five-four vote of the Supreme Court a year later (Diamond v. Chakrabarty, 447 U.S. 303).
The case attracted considerable attention, but the Court’s decision fell short of the momentous ruling some had anticipated. For one thing, the Court was divided. For another, both sides agreed that the question before them was simply “a narrow one of statutory interpretation,” requiring the Court to construe the language of that section of the patent law which defined patentable matter. The Court’s opinion, and the dissent, were largely technical. Thus, readers of the opinion who looked for large philosophical dicta about man’s art and living nature or about genetic engineering came away disappointed. Alas, it looked as if the Court was, for a change, being simply judicious, doing no more than its proper work.
Yet the decision was not inconsequential. Indeed, it has already contributed to numerous recent practices. Patent claims are now pending for other living microorganisms, as well as for animal cell lines propagated in tissue culture, allegedly valuable for uses ranging from a cheaper means of making penicillin to novel treatments for specific cancers. Genetic-engineering firms are springing up all around. Academic molecular biologists are being courted by industry, with astounding financial incentives. Major grants for genetic-engineering research to universities have been given by industries in exchange for patent rights to any resulting useful and profitable discoveries. Under such an agreement, Hoechst, the German chemical company, has just given $50 million for a new genetic-engineering institute to Harvard Unversity, which, after considerable faculty opposition, had only recently abandoned plans to form its own genetic-engineering company. Many industries are tooling up in anticipation of the flood of new organisms and cell lines to be brought into being with the aid of human ingenuity, spurred on by our ingenious stroke to encourage genius, the patent laws. True, the art of genetic engineering was born and would grow without the Chakrabarty decision. But there is no question that it will now grow much, much faster.
But the Chakrabarty decision is useful in yet another, perhaps more fundamental, respect. It is useful for thought, for reflection on the relation between modern science and politics, and between science and the American polity in particular, especially as that relation is embodied in and exemplified by the patent laws. Indeed, the Chakrabarty case provides a wonderful mirror in which we can see fundamental features of the American polity, and therewith of modernity itself, and discern some of its deeper tensions: the relation of private interests or rights and the common good; the purposes of science and thought and their relation to practice and to the public interest; and, finally, the prevailing view of man’s place in and attitude toward the natural world. Before looking into that mirror, we need to describe some contours of the broader background.
Science in the public interest is a guiding intention of modern science and has been since its origins in the 17th century. Though we hear much about the distinction between pure and applied science—and I too shall distinguish them later—we must begin by emphasizing the essentially practical and social intention of modern science as such. Unlike ancient science, which sought knowledge of what things are, to be contemplated as an end-in-itself satisfying to the knower, modern science seeks knowledge of how things work, to be used as a means for the relief and comfort of all humanity, knowers and non-knowers alike. Standing on the threshold of the new science of mathematical physics, Descartes appeals for popular support of his researches by announcing the good news of knowledge “very useful in life”:
[S]o soon as I had acquired some general notions concerning Physics . . . I believed that I could not keep them concealed without greatly sinning against the law which obliges us to procure, as much as in us lies, the general good of all mankind. For they caused me to see that it is possible to attain knowledge which is very useful in life, and that, instead of that speculative philosophy which is taught in the Schools, we may find a practical philosophy by means of which, knowing the force and the action of fire, water, air, the stars, heaven, and all the other bodies that environ us, as distinctly as we know the different crafts of our artisans, we can in the same way employ them in all those uses to which they are adapted, and thus render ourselves the masters and possessors of nature. This is not merely to be desired with a view to the invention of an infinity of arts and crafts which enable us to enjoy without any trouble the fruits of the earth and all the good things which are to be found there, but also principally because it brings about the preservation of health, which is without doubt the chief blessing and the foundation of all other blessings in this life. For the mind depends so much on the temperament and disposition of the bodily organs that, if it is possible to find a means of rendering men wiser and cleverer than they have hitherto been, I believe that it is in medicine that it must be sought. (Discourse on Method, Part VI. Emphasis added.)
The announced goal of the new science is the mastery and possession of nature, and the purposes of mastery are humanitarian: the conquest of external necessity, the promotion of bodily health and longevity, the provision of psychic peace or a new kind of wisdom.
Even the notions and ways of science manifest a conception of knowledge for the sake of power: nature is conceived mechanistically, and explanation is in terms of efficient or moving causes; hidden truths are gained by acting on nature, i.e., through experiment; inquiry is made “methodical,” through the imposition of order and schemes of measurement “made” by the intellect; knowledge, embodied in laics rather than theorems, becomes “systematic” under the rules of a new mathematics expressly invented for this purpose. Modern science rejects, as meaningless or useless, questions that cannot be answered by application of the method. In all these fundamental ways, modern science has a practical cast. This remains true of the science practiced even by those great scientists who are driven by curiosity and the desire for truth and who have themselves no interest in that mastery and possession of nature for which science is largely esteemed by the rest of us.
Though essentially linked to practice, modern science is, in certain important respects, morally neutral. It does not itself seek knowledge of the good. Indeed, it looks upon nature, its object, as neutral and indifferent to the good or the beautiful. Moreover, the technical power it yields can be used for good or ill. Nevertheless, modern science is guided overall by an ethical—if prideful—intention: a lifting up of downtrodden humanity, a reversal of the curses laid upon Adam and Eve, and, ultimately, a restoration of the tree of life, by means of the tree of knowledge. Never mind the question how a science invincibly ignorant of and in principle skeptical about standards of better and worse can know how to do good for mankind. The new humanitarians simply point to the seemingly self-evident truth that life becomes better as it becomes less poor, nasty, brutish, and short.
Gradually, and increasingly as it began to make good its promise of technological fruit from the tree of useful knowledge, science was welcomed into partnership with the political community. Yet thoughtful men disagreed sharply about how science and the useful arts would and should relate to morals and politics. Close to one extreme was the view that popular enlightenment—and particularly the teachings of modern science—undermined ruling opinions and beliefs, especially religious beliefs, necessary for a good regime, and that unbridled progress would lead to luxury, the liberation and inflation of vain and foolish desires, and the debasement of morals and taste. Though they welcomed science’s contributions to health and plenty, these thinkers argued the need for settled laws, customs, and mores to restrain the turbulent and licentious souls of men. In the absence of such restraints, the conquest of nature without could enslave us to unruly nature within.
Even Francis Bacon, perhaps the greatest proponent of the marriage of science and politics, understood that the novelty sought by the former was not always congenial to the stability required by the latter. Bacon’s image of the best community, presented in his New Atlantis, does indeed award a central place to Baconian science: the jewel and lantern of the kingdom is a prodigious, state-supported, scientific research foundation, called Solomon’s House or the College of the Six Days Works (which, by the way, artfully creates new species through genetic manipulation). But the community is not enlightened. The populace has little access to the scientific goings-on, and the scientists practice self-censorship to avoid publicizing dangerous knowledge. A benevolent state, with the help of or perhaps under the direction of the scientists, apparently closely regulates the lives of its inhabitants by means of austere rituals, state-supported (albeit tolerant) religion, and—one suspects—perhaps even some scientifically-based means of behavior modification. According to Bacon, the mixture of science and politics, though desirable and even urgent, was potentially explosive and needed delicate handling.
In contrast, some of the Enlightenment thinkers of the 18th century and their descendants were much more sanguine about the easy compatibility of science and society. The most optimistic ones prophesied an unlimited and coupled progress of science and morality: the progress of science and technology would conquer necessity and alleviate human misery, and man thus emancipated from nature’s harsh and cruel necessities would flower morally into the good creature only his neediness prevents him from being. Man once liberated and enlightened, the external restraints imposed on him by law, mores, and religion would eventually become unnecessary. In the end, the state would wither away; politics, the rule over men, would be replaced by administration, the management of things. Our various species of Marxism are the lineal descendants of this messianic view of human perfectibility based on progress in the arts and sciences.
To summarize, whereas pre-modern political thinkers and statesmen placed their trust in law and morals, and doubted the ethical and social benefits of inquiry, modern science, devoted to the public good, found a political home and able defenders in modern, liberal regimes. Nevertheless, the proper balance and relation between science-technology and law or morals, between change and stability, remained an open question.
The founders of the American republic, though influenced by optimistic Enlightenment thought, were hardly utopians; they pursued a middle course. They knew human nature well enough not to underestimate the crucial importance of good laws, education, and also religion for the preservation of decency and public-spiritedness. But they also appreciated fully the promise of science. The American republic is, to my knowledge, the first regime explicitly to embrace scientific and technical progress and officially to claim its importance for the public good. The United States Constitution, which is silent on education and morality, speaks up about scientific progress. It does so in the course of defining the powers of Congress (Article I, Sec. 8):
The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
“To promote the Progress of Science and the useful Arts.” It is curious that this provision has come to be known as the Copyright and Patent Provision rather than the Provision on Progress in the Sciences and Useful Arts; for such progress is the explicit goal and purpose of the congressional power to enact the copyright and patent laws. These statutes, which we think of largely as protecting so-called intellectual property, were in the first instance thought of as useful to scientific and technical progress.
But progress was not itself the final end. Congress was given power to promote the useful arts, not the useless ones (e.g., the liberal arts or the fine arts). In the Federalist (No. 43), Madison speaks of the unquestionable utility of this congressional power to promote progress, and the context suggests that by its utility he means its usefulness to the public good.1 From this we infer that the useful arts and sciences were meant to be subordinated to, and in the service of, the well-being of the nation. Not progress for progress’s sake, but progress that might serve the enduring and unchanging goals set forth in the Preamble to the Constitution, among them, to provide for the common defense and promote the general welfare, and thus, indirectly, to establish justice, to insure domestic tranquility, and to secure the blessings of liberty to ourselves and our posterity. The American republic embraces change, but in the service of duration; science, but in the service of liberty and justice, defined by law. In this respect the Copyright and Patent Provision is perhaps only the most obvious example of the American way. For the entire Constitution is a deliberate embodiment of balanced tensions between science and law and between stability and novelty, inasmuch as the Founders self-consciously sought to institutionalize the improvements of the “science of politics,” and in such a way that would stably perpetuate openness to future change.
How best to promote the arts and sciences? How to induce talented men to behave for the common good? The Constitution once again makes a clear and measured choice: private enterprise, governed and protected by law. Other possibilities were considered by the Convention. Madison had proposed, among the powers of Congress, “To establish a university” and “To encourage by premiums and provisions, the advancement of useful knowledge and discoveries.” Yet the Convention rejected the establishment of a national university and the federal support of science through prizes and provisions, and adopted, apparently without debate, the provision which encourages progress by adding the fuel of interest to the fire of genius.
This reliance on self-interest and the motive of gain might be attributable to the Founders’ hard-headed appraisal of the selfish tendencies of most human beings; and cynics have sometimes attributed such motives to the Founders themselves. But a careful look at the constitutional text indicates that the patent provision is a matter not only of calculation but also of justice. Congress is empowered to secure, that is, to make safe and protect, a right of authors and inventors to the fruits of their genius and energy, a right which, by implication, antedates the Constitution. Indeed, this “Right of Authors and Inventors to their respective Writings and Discoveries” is the first and only right mentioned in the body of the original Constitution of 1787 (that is, before the Amendments and Bill of Rights). To quote Madison: “The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.”
There is justice, then, in the claims of copyright and patent. To be sure, doing justice will be complicated if the patent prize is awarded only for finishing first in a race in which the winner ran only the last leg of a long relay, tens or hundreds having assisted him. Nevertheless, everyone sees the at least prima facie claim that justice requires protecting the labors of the imaginative and industrious against theft by the sly and lazy. If theft of property is wrong, the right of patent is right, at least in some sense. The foundation of the patent law is not only utilitarian, but also ethical.
Indeed, it is ethical also in its consequences for character. The law not only protects individual rights and prevents injustice; it also rewards and encourages the energetic cultivation of the mind and the intellectual virtues of inventiveness, order, and precision, and promotes in publicly beneficial ways the moral virtues of ambition and industry. These likely consequences were in fact very important to many of the Founders, and their decision to fuel private enterprise was partly based on these hoped-for improvements in character and mind. To be sure, the mind has other and higher objects than inventions, and ambition and industry do not exhaust the moral virtues. Still, a respect for the human mind and an appreciation of efforts to realize its potential are built into our constituting law. One errs to see here only greed and base calculation.
Patent laws serve the public interest at the same time as they protect private rights. The community gains publication, likely development of inventions, a share in the resulting prosperity, and, should it desire it, some legislative hand on the throttle of progress. The patent laws of 1790, enacted by the first Congress, thus established what can rightly be called an ethical-social contract of science in the public interest. In order to secure their rights, authors and inventors had to disclose, that is, make gift to the public of their findings: no protection without publication. (In choosing to promote the widest possible publication, the Founders showed less concern than Bacon for the problem of dangerous knowledge, a matter to which we shall return.) Moreover, the exclusive right was obtained for only a limited period, to encourage prompt development and production of new inventions; thus, society might reap the benefits of innovation more quickly than if the right were of unlimited duration. All in all, the Copyright and Patent Provision and the patent law are most ingenious, public-spirited, and just inventions—themselves worthy of patent protection. Madison praised the former, saying, “The public good fully coincides with the claims of individuals.” Abraham Lincoln (in his lecture on “Discoveries and Inventions,” February 11, 1859) listed the latter, along with the arts of writing and printing and the discovery of America, among those few inventions and discoveries in the history of the world, most valuable “on account of their great efficiency in facilitating all other inventions and discoveries.”
Time has vindicated these judgments. We are showered on all sides by countless benefits of this far-sighted invention of the American mind, which harnessed science and artful intelligence to the carriage of state and which kept it moving by means of the carrot of self-interest. It would seem hypocritical and, what is worse, ungrateful, to question this arrangement, all the more so in the light of the marvelous contributions to our health and prosperity that we can now obviously expect from the industrial exploitation of learning how to get microorganisms to do our manufacturing.
And yet, honesty compels us to point out certain peculiarities of this arrangement, peculiarities that might eventually give rise to serious difficulties, not only for the union of science and the American polity, but also for each of the partners taken separately. First, it should be observed that the contract formed by the patent law brings together, in stressful if fertile union, certain contradictory, or at least inhospitable, partners and principles: self-interest and common good; monopoly and liberty; the ownership of ideas and the sharability or publicity of speech and thought. The patent law seeks to promote the common good by licensing private interest, thus running the risk of fostering a crass selfishness that in any particular instance might sacrifice public interest to private gain and that eventually renders men generally indifferent, or even hostile, to the common good. It seeks indirectly, by means of progress and prosperity, to safeguard political liberty, but it does so by legitimating monopoly—albeit of limited duration—which is the antithesis of liberty. It rewards publication and, therefore, presupposes the sharability of thoughts and ideas, yet it does so by licensing the private ownership of these works of the mind.
Second, there is the already noted built-in tension between progress and stability. Indeed, the very idea of a patent law is something of an oxymoron: it is a hybrid of two opposing principles, change and order, that live always in tension with each other. Law as law stands for order and stability. It not only sets limits and restrains undesirable conduct. It also embodies our opinions, albeit our variable opinions, about what is just and good. Though subject to change, law as such points to what is permanent. A law to encourage progress is thus, at bottom, a paradoxical law. In a way, though it promotes change, as an expression of legitimacy the patent law still, at least formally, accords primacy to order. Absent such a law, innovation would lack legal protection and even legitimacy. Thus, the supremely ingenious invention of the patent law could not itself be patentable, due to an absence of law.
In principle, the Constitution goes further than this formal subordination. The constitutional Patent Provision, we have suggested, maintains a balance by subordinating progress to the unchanging, substantive goals of justice and liberty. But in practice, the patent law threatens to tip the scale in favor of runaway change. Increasingly encouraged, the horses of technological progress break into full gallop, seemingly out of anyone’s control, and the community is left with the difficult task of adjusting after the fact to the paths traveled and the changes wrought. Sometimes, when progress comes before the bar—as in the present case—even learned men judicially charged with upholding the law choose instead injudiciously to redefine it, in order to keep pace with novelty.
Finally, there are potential strains in the American polity’s contract with science, insofar as the polity accepts without reservations the methods, principles, and purposes of modern natural science. For example, the practice of experimentation, when extended to human subjects, often places science on a collision course with the rights of individuals. Worse yet, our fundamental political principles, the natural rights enunciated in the Declaration of Independence, acquire no support from the “nature” described by the laws of physics and chemistry. The “nature” of the physicists, to say the least, offers no ground for rights, let alone for the belief that we have these rights as endowments from our Creator. Further, in biology, the teachings of evolution seem to deny to human beings any special place in the whole. And when, encouraged by these teachings, the project to relieve man’s estate through mastery and possession of nature approaches making fundamental alterations in human nature itself, Americans—everyone—must begin to wonder whether the goals and presuppositions of the entire venture are sound and even whether modern science’s notions of knowledge and nature are simply and unqualifiedly true.
Curiously, the recent Supreme Court decision in the Chakrabarty case points up all these difficulties, notwithstanding the narrow question it decided and the limited character of its holding. Various commentators have raised broader questions about the meaning of the Chakrabarty decision and its consequences: questions about the desirability of genetic engineering, about the dangers of the further commercialization of science, and about the propriety of owning an entire living species. By examining each of these questions, we shall be led to discover some of the limitations of the contract between modern science and the American polity, as it is embodied in our patent law.
First: does the protection of private rights and interests in new discoveries and inventions always serve the public good? Is the awarding of patents always in the public interest? The answer to these questions necessarily turns, in any given case, on the nature of the particular discovery and invention. More generally, it turns on the question, Is progress or technical innovation always in the public interest? If the innovations are simply or largely beneficial, their encouragement through award of patents would still reflect harmony between private interest and common good. But what about dangerous discoveries and inventions? Does the community serve its best interests when it stimulates their development through patent grants? Might not even the publication of the existence of the dangerous invention prove harmful to the public interest? What is the American polity’s remedy for this problem of dangerous innovation?
Genetic engineering is regarded by many as just such a dangerous technology, and one posing no ordinary dangers. For in human genetic engineering, the previous beneficiary of the power to alter nature becomes himself subject to that power and those alterations. The power to engineer the engineer sharply raises questions about the meaning and limits of progress.
It was, I am sure, concerns about the dangers of genetic engineering, especially human genetic engineering, that gave the Chakrabarty case such wide interest. In argument before the Supreme Court, grave risks allegedly associated with genetic manipulation were cited as a reason why patent should be denied. The majority opinion states:
We are told that genetic research and related technological developments may spread pollution and disease, that it may result in a loss of genetic diversity, and that its practice may tend to depreciate the value of human life.
These opinions were advanced and are held by reputable scientists, among others, whose concerns range from fears about new biohazards to doubts about our possessing the wisdom requisite to redesign human genes or to interfere designedly in the course of evolution. There is, to be sure, much disagreement about the degree to which these fears and doubts are warranted, but there is no doubt that the matters at stake are serious. The Court indeed acknowledged the seriousness of such considerations, but held them nonetheless irrelevant to its decision, partly on the ground that its negative decision would not prevent such research, partly on the ground that it lacked the competence or the constitutional authority to decide how much and what kind of genetic research our society should foster.
The Court’s judgment seems to me to be sound. Under our Constitution, it is for the legislature to decide such questions, and the Courts ought not to rewrite the rules. Further, denial of individual patent applications seems a poor way for society to decide questions about allegedly dangerous research and technology. Yet this very fact calls attention to a defect in the relation between science and society, insofar as that relation is largely defined by or exemplified in the contract of the patent laws. The patent laws assume that innovations proposed by inventors are, because innovative and useful to some, simply good for the community at large. Instituted well before many people recognized the communal price everyone pays for certain kinds of technological change, they reflect a once little-questioned faith in progress. Thus, as they are instruments for encouraging innovation, they are poorly designed for regulating or controlling it. It is no surprise that the mechanism for making the individual horses run turns out to be incapable of slowing them down, should one later discover that, as a team, they are in danger of running away with the rider.
And yet one wonders. The Court says, “Whether respondent’s claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by the want of incentives, but that is all” (emphasis added). But that “all” is not nothing. True, something unpatentable could still be legal and profitable; one cannot assume that lack of a patent will prevent development. Nevertheless, the awarding of patents is a communal hand on the throttle, a gentle hand to be sure, but by no means ineffective. Further, it is, as it happens, a hand less threatening to science than the legislative power to prohibit and make illegal. Moreover, one might argue that, in the statutory criterion of utility, the Patent Office has been given the power, indeed the duty, to judge the social merits of a given invention in deciding whether to encourage its development. According to the patent laws, only useful inventions may be patented, and rightly so, if some usefulness to the public good is society’s share of the patenting contract. Though it is generally sound to believe that fueling private incentives serves the public good, allowing the market to decide “usefulness,” this is notoriously not always the case (especially if by “public good” we mean more than economic growth).
How does the Patent Office understand “the useful”? In general, its presumption being to favor development, any definable “use” is sufficient. But is this always sound? How should it judge the usefulness of a manufacture that has obvious and likely misuses and abuses, along with some clear and well-defined use? For example, how should it judge the usefulness of a perfected pleasure drug, admittedly beneficial in the treatment of depression, but almost certainly subject to widespread social or political abuse? What about improved devices for subliminal advertising? Or new and improved miniature recording and photographic devices that would no doubt increase snooping and invasions of privacy? Should the inventor of selective spermicides and his financial backers be able to decide by patenting that our society should be able to practice sex-selection of offspring?
One would think that a well-developed and nuanced doctrine of “utility” might already be embodied in court decisions involving patent claims. But a brief survey of the legal literature shows otherwise. True, precedent denies patentable “utility” to inventions whose contemplated use is for purposes deemed illegal or immoral (bogus coin detectors for slot machines, for example) or which always cause bodily harm to the user when used in the intended manner (for example, a drug effective against depression but toxic to the point of lethality). “A composition unsafe for use by reason of extreme toxicity to point of immediate death under all conditions of its sole contemplated use in treating disease of human organisms would not be ‘useful’ within the meaning of patent laws” (emphasis added) is the limited, almost grudging, concession to such considerations made by the United States Court of Customs and Patent Appeals, in a well-known case, Application of Anthony. In that case (1969), the Court in fact argued that, short of such uniform catastrophe, safety as an ingredient of utility is a relative matter, and overruled the U.S. Patent Office which had denied patent for an anti-depressant drug, Monase, a drug voluntarily taken off the commercial market by its manufacturers because of a dozen fatalities reported among its many users.
Commenting in a footnote on the more general question of social harm from inventions capable of affecting public morals, health, and order, the Court in Anthony endorses a turn-of-the-century U.S. Circuit Court opinion (Fuller v. Berger et al.): an invention is “useful within the meaning of the law, if it is used (or is designed and adapted to be used) to accomplish a good result, though in fact it is oftener used (or is as well or even better adapted to be used) to accomplish a bad one.”2
During the 1960’s this doctrine—that likely abuse does not negate use—caused some embarrassment to the Patent Office, indeed, as a consequence of its function as publicist. A patent had been earlier awarded for LSD, shortly before its hallucinogenic properties were known. When the drug found its way into street use, the Patent Office helped a whole generation learn how to manufacture it, being obliged to divulge the details of its chemical synthesis to anyone who requested them. The Patent Office did so until the supply of printed matter about LSD was exhausted.
Perhaps such precedents reflect our long-standing and naive belief in the beneficence, or at least the innocence, of all innovation. Would a similar court today allow a patent for Monase, for the Colt revolver, or for LSD? Perhaps the future might bring us a more complex and refined doctrine of utility, one which was willing to make balancing judgments in protecting the public’s side of the contract. But, at least for now, it seems that any licit and non-lethal “use” suffices for the statutory test of “utility,” all likely abuses notwithstanding. Under these circumstances, our second thoughts confirm our first: the Court in Chakrabarty was right in not allowing concerns about the possible dangers of genetic engineering to influence its decision.
If patent decisions do not and cannot consider these broad questions of use and possible abuse, if restriction of patents is an inappropriate mechanism for setting the pace in the realm of potentially dangerous technologies, the contract between science and society needs additional clauses. To be sure, many already exist—e.g., Regulations of the Food and Drug Administration, Guidelines for the Use of Human Subjects in Research, etc. Yet most of these regulations deal only with questions of health and safety. We have few means of assessing and regulating with regard to the massive consequences of new technologies to our mores, institutions, and ways of life. With the vast powers, now being accumulated, that would bring the mastery of nature to bear on human nature itself, some have begun to wonder whether the simply permissive contract between innovators and society needs to be renegotiated.
Such a response seems to me excessive. We have, and will continue to have, a commitment to scientific and technological progress. We have reason to expect that the social and political results of such progress will continue to be largely beneficial, and that the union of science and politics cemented by the patent laws will continue to serve us well. It would be foolish to dismantle our instruments of progress just because they require some additional devices and mechanisms. It would be foolish to shackle our accelerator just because it does not function as a brake. The difficult question—one which we have only begun to face—is what kinds of political arrangements and institutions are best suited to reviewing the direction and pace of certain “dangerous” developments and to applying the brakes, if necessary. One thing seems clear: the responsibility lies with the legislature. Courts may raise questions about the need for brakes, but it must be Congress that applies them. How to do so is, of course, the difficult question. The task of inventing suitable braking mechanisms will require even more ingenuity than the invention of the patent laws. We are all aware of the serious risks and costs of governmental regulation. Yet unless some means of control are found for those technologies reasonably regarded as potentially dangerous to the public interest— and, for the long run, who can be certain about genetic engineering?—the motives of gain, when added to ingenuity and stimulated by patent protection, are likely to subvert the common good. With big money fanning the flames—consider the difficulties in regulating the tobacco or automobile industries—the fire of innovation could be out of control before anyone gets warm enough to worry.
We have argued that the job of brakeman does not belong to the Courts. But it does not follow that the Courts should be free to remove or revise brakes applied by the legislature. The Court should be neither the partisan nor the opponent of progress; it is, instead, the guardian of law and, implicitly, a teacher of law-abidingness. The Court in Chakrabarty rightly resisted encroaching upon the legislative domain in refusing to become society’s arbiter regarding genetic engineering; but how well did it discharge its own task of guarding the law? An examination of the decision reveals that the Court showed itself partial to progress, with the so-called conservative members leading the way.
The Court was asked to decide not whether living organisms ought to be, but only whether they are patentable matter, as this is defined by statute. The relevant portion of the patent law (32 United States Code §101) provides:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the condition and requirements of this title.
To decide affirmatively, the Court majority had to construe both the novel microorganism and the operative clause in the statute, which defines patentable matter as “any new and useful process, machine, manufacture, or composition of matter,” such that a living bacterium could be understood to be either a “manufacture” or a “composition of matter” or both; the Court minority argued that “manufacture” or “composition of matter” were not intended by Congress to encompass living organisms. Though the majority opinion does not directly argue that the microorganism in question is, say, a composition—i.e., a putting together—of matter, it treats its aliveness as irrelevant to its patentability. It ignores altogether the nature of the object, arguing: “In choosing such expansive terms as ‘manufacture’ and ‘composition of matter,’ modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” Finally, the Court argues that novelty, utility, and the fact that Chakrabarty’s discovery “is not nature’s handiwork but his own” render the bacterium patentable subject matter and Chakrabarty and General Electric the proud owners of “his” new species.
I happen to think the Court opinion mistaken in its reading of the statute. The terms “manufacture” and “composition of matter” go back to Jefferson’s 1793 patent law, and Congress has retained them without change in all subsequent revisions. (In another category of patentable matter, when Congress became dissatisfied with Jefferson’s concepts, it replaced his term: the present “process” is a replacement for Jefferson’s “art.”) Did Jefferson regard a living organism as a mere “composition of matter”? Certainly, in the ordinary sense of these terms, no one should. The majority goes too far in extrapolating from its correct belief that Congress “contemplated that the patent laws would be given wide scope.” It sustains the opinion that Congress intends statutory subject matter to “include anything under the sun made by man.” But if so, why did Congress in fact make and preserve categorical distinctions among the kinds of patentable man-made things—“processes, machines, manufactures, and compositions of matter”—distinctions that would be unnecessary if “anything under the sun,” so long as of artificial origin, were the sufficient mark of patentable matter—of course, along with novelty, utility, and non-obviousness? And why, the minority rightly asks, would Congress enact separate plant patent laws (in 1930 and again in 1970) to permit patenting of new plant varieties, if Congress understood “manufacture” and “composition of matter” as broadly as the Court majority now claims? Indeed, as the minority again points out, in the 1970 Plant Patent Act Congress had specifically excluded bacteria from patentability under the Act: “Congress has included bacteria within the focus of its legislative concern, but not within the scope of patent protection. . . . Congress, assuming that animate objects as to which it had not specifically legislated could not be patented, excluded bacteria from the set of patentable organisms.”
The Court majority ignored these specific facts about the written statutes. It took its stand instead on what it calls the “broad general language” of the patent laws and on its own construction of the legislative intent: “The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting ‘the Progress of Science and useful Arts’ with all that means for the social and economic benefits envisioned by Jefferson.” It is an insult to Jefferson to suggest that his friendship for progress made him imprecise and vague as a legislator. He said what he meant and he meant what he said, always careful about his choice of words. Courts would do less mischief if they treated all law and legislatures as if they meant what they in fact explicitly said. The present Court’s love of innovation extends to its reading of law. We must wonder whether such “progressive” jurisprudence is not too high a price for progress.
If patenting and the patent laws do not always serve the public or political good, are they simply good for science? As we shall see, this is best understood as a special case of the question, Is practice always good for theory?, and it ultimately invites us to reconsider the purposes of science and of thought more generally. But nearer at hand are questions about science and money.
The Chakrabarty decision has prompted discussion about possible corrupting tendencies of the profit motive, not so much for the society at large, but, curiously, for the present practice of biological science, especially in universities. For roughly a quarter-century, biomedical research has flourished, largely funded by the federal government and philanthropic foundations, much of it done in universities. Though ultimately interested in the practical benefits, the government, albeit not without frequent prodding by basic scientists, has wisely and patiently supported many outstanding minds in so-called basic research, largely without regard to its immediate utility. Progress over the past three decades is simply staggering. Though competition is keen, and there are well-known cases of secretive and even unscrupulous behavior, on the whole the field has thrived on free and cooperative exchange of information and materials, including strains of microorganisms.
Now that new discoveries and techniques in cell biology and molecular genetics have brought these fields fully into the industrial area, many are worried that the profit motive will distort, not to say corrupt, scientific practices. Concerns are expressed for the effects on the behavior of scientists, on the balance in fields of research, and on universities. Warnings are heard about an impending restriction of the free flow of information and a rise of secretiveness, deception, and other unsavory conduct, not excluding espionage. Others are concerned that profits will dictate the direction of scientific research, deflecting the scientific mind from going where it will or should. With several universities, under threat of rising costs and dwindling financial support, already established entrepreneurs in genetic technology, and many fine scientists entering industry in a variety of capacities, often retaining their academic tenure, there is argument that such goings-on in principle violate the spirit and will in practice threaten the purpose of the university.
These are serious and complicated questions which cannot be addressed adequately here. On some matters the concerns seem exaggerated. The rise of industrial chemistry and applied physics has not in itself, it seems to me, corrupted basic research in universities, nor led to undue secrecy or unsavory practices. And in any case, such problems as appear are due more to the large amounts of money involved than to patenting (though the two are not unrelated). For the need to protect profitable discoveries through patent should lead not to secrecy, but to publication (though the anticipation of future patent application does lead many into temporary secrecy, and reports are now increasing of biologists who, looking to protect future patents, have become silent and stingy with new information and materials). Once a patent is granted, for a payment of royalties new information, materials, and techniques are potentially more widely sharable. Moreover, the disdain of many academic biologists for the practical applications of their work can only be regarded as hypocritical, especially considering the hopes of, and their promises to, their public patrons. Academic scientists have for years played upon the public’s utilitarian concerns and always promised and even emphasized the probable long-run practical benefits when seeking congressional support to satisfy their own private curiosity. Science, even university science, is, to some extent, a kept woman, and the question sometimes seems to be only who shall keep her and what is her price. Her virtue and her fruitfulness may not suffer further from wedding herself to industry.
But this is no matter for levity; the stakes are very high. There is reason to be concerned about the growth of the academic-industrial complex, but not because industry is corrupt or corrupting or because there is something reprehensible about utility or even money-making. Rather, one is concerned because one knows that universities exist not only to generate useful discoveries and because one suspects that knowledge for the sake of power and utility is not the whole truth about knowledge, that thought at its best—including scientific thought—seeks truth for its own sake. For these reasons, we can ill afford to be indifferent to the fate and character of university science and to the climate for free and fundamental thought. The remarkable record of American scientists in basic discovery in biology is a credit to public support and especially to the university setting, with its great freedom of inquiry and its relative immunity to demands for prompt success or useful results. Here, fundamental thought is frequently stimulated by the collegiality of scholars in diverse areas of inquiry, scholars who are also teachers, somehow still heirs to a great tradition that often gave more than lip-service to the disinterested pursuit of the truth. Professors are often pushed to fundamentals also by their undergraduate students, who are not yet sufficiently “educated” to know that there are some questions one should avoid asking. One wonders how theory will fare if the universities are increasingly drawn to practice. One wonders whether the search for the truth will flourish, should the universities and their scientists try to be increasingly relevant and useful.
Though largely unanticipated by the American Founders, the rise of universities and of science within them has added a new dimension to the original relation between science and politics, a dimension that acquisitive, democratic, and egalitarian regimes very much require. The point was made brilliantly by Tocqueville, in his Democracy in America, in the chapter, “Why the Americans are More Concerned with the Applications than with the Theory of Science”:
The higher sciences or the higher parts of all sciences require meditation above everything else. But nothing is less conducive to meditation than the setup of democratic society. . . . Everyone is on the move, some in quest of power, others of gain. In the midst of this universal tumult, this incessant conflict of jarring interests, this endless chase for wealth, where is one to find the calm for the profound researches of the intellect? How can the mind dwell on any single subject when all around is on the move and when one is himself swept and buffeted along by the whirling current which carries all before it?
Not only is meditation difficult for men in democracies, but they naturally attach little importance to it. . . . In democratic countries when almost everyone is engaged in active life, the darting speed of a quick, superficial mind is at a premium, while slow deep thought is excessively undervalued. . . .
Most of the people in these [democratic] nations are extremely eager in the pursuit of immediate material pleasures and are always discontented with the position they occupy and always free to leave it. They think about nothing but ways of changing their lot and bettering it. For people in this frame of mind every new way of getting wealth more quickly, every machine which lessens work, every means of diminishing the costs of production, every invention which makes pleasures easier or greater, seems the most magnificent accomplishment of the human mind. It is chiefly from this line of approach that democratic peoples come to study sciences, to understand them, and to value them. In aristocratic ages the chief function of science is to give pleasure to the mind, but in democratic ages to the body.
. . . It is easy to see how, in a society organized on these lines, men’s minds are unconsciously led to neglect theory and devote an unparalleled amount of energy to the applications of science. . . .
On the strength of this analysis, Tocqueville gives this advice:
If those who are called on to direct the affairs of nations in our time can clearly and in good time understand these new tendencies which will soon be irresistible, they will see that, granted enlightenment and liberty, people living in a democratic age are quite certain to bring the industrial side of science to perfection anyhow and that henceforth the whole energy of organized society should be directed to the support of higher studies and the fostering of a passion for pure science.
Nowadays the need is to keep men interested in theory. They will look after the practical side of things for themselves. So, instead of perpetually concentrating attention on the minute examination of secondary effects, it is good to distract it therefrom sometimes and lift it to the contemplation of first causes. . . .
We therefore should not console ourselves by thinking that the barbarians are still a long way off. Some people may let the torch be snatched from their hands, but others stamp it out themselves.
I do not wish to exaggerate the dangers to pure science or to universities from the new privilege to patent microorganisms, hybridomas, and products of genetic engineering. Nor, unfortunately, are universities or academic scientists today the embodiment of thoughtfulness and disinterested inquiry that Tocqueville rightly argues we so urgently need. But the climate is not being helped by the eruption among scientists and administrators of what must frankly be called greed, nor is it likely to be improved by the continuing growth of the academic-industrial complex. When the president of Harvard University devotes his entire annual address to his Board of Overseers to the theme of “technology transfer”—the translation of scientific knowledge into useful products and processes—and argues that it must become a central task of the university, one has reason to believe that big winds may soon blow the academy off its present course.
American universities are, for all their faults, precious and precarious institutions. In fact, the present balance within them between the busy and the deliberate, the clever and the wise, the useful and the true, is already tipped so far toward the former that we must be cautious about all further changes that tend to diminish the latter. It should now be evident that my concern for universities and for theory and fundamental thought goes beyond my concern for so-called pure science. The earlier discussion should have made clear the importance of careful and thorough thinking about the relation between science and the American polity and about the implications of our new forays into genetic engineering. Indeed, especially now, when the goal and direction of the scientific project for the mastery of nature seem less clear than ever, and when, despite this confusion about the end, the means are being amassed to affect directly and deliberately all forms of life on the planet, we stand in urgent need of the far-seeking and high-minded reflection about science, ethics, and society which the patent laws, industry, and even such fine institutions as the National Institutes of Health cannot encourage or foster.
But theory is urgent not only because basic research pays dividends in applications, nor even because we need theory to think about whither we are tending. Theory is urgent also because it is in itself elevating and liberating. Thoughtfulness, speculation, genuine inquiry beyond mere problem-solving, philosophical reflection on our condition and our place in the world, in short, liberal learning and liberal education—and not only the advancement of Baconian learning—are necessary for a truly free people. Liberty, secured by the progress of science and useful arts, would be little blessed if our minds become enslaved in and to the process of serving our bodies.
Once again, the task is to restore the balance, to give weight to the weaker side. And once again, it is difficult to see how and by whom the countervailing forces for liberal learning and philosophic reflection are to be generated and supported, especially now when economic troubles aggravate the natural tendency of modern thought to serve utility.
The task is beyond the competence both of our science, not least because of its anti-speculative self-definition, and of our law. No one would say that the practice or encouragement of philosophical reflection is the business of our courts. But, at the same time, it is sad when the Supreme Court, the closest approximation in the American polity to the rule of thoughtful reason, promulgates ill-considered opinions about weighty matters. For in justifying its decisions, the Court functions also as a teacher, helping to form what become our ruling opinions. Indeed, the opinions of the Court are often more important for what they teach than for what they decide. We take one last look at the Chakrabarty case, with a view to the Court as teacher.
What has the Chakrabarty decision accomplished? A rather modest gain for Chakrabarty, a rather sizable boost for the burgeoning hybridoma and genetic-technology industry, but—by means of negative example—a most important lesson, if only we can learn it, about how close we have come in our thinking, if not yet in our practice, to overstepping the sensible limits of the project for mastery and possession of nature. This project makes sense only if we fully understand and accept the limited meanings of “mastery” and “possession” and only if we appreciate the nature of living nature and our place within it. On these deep matters, the Court was here a teacher of shallowness.
Consider first the implicit teaching of our wise men, that a living organism is no more than a composition of matter, no different from the latest perfume or insecticide. What about other living organisms—goldfish, bald eagles, horses? What about human beings? Just compositions of matter? Here arise deep philosophical questions to which the Court has given little thought; but in its eagerness to serve innovation, it has, perhaps unwittingly, become the teacher of philosophical materialism—the view that all forms are but accidents of underlying matter, that matter is what truly is— and therewith, the teacher also of the homogeneity of the given world, and, at least in principle, of the absence of any special dignity in all of living nature, our own included.
A similar teaching is also implicit in the enlargement of the sphere of what may be owned and possessed. By the arguments of the Court, it now seems that anything under the sun made of tangible stuff falls under “composition of matter,” and is therefore patentable, so long as its origin is in human art. Nothing in the Court’s opinion would permit one to argue that the “inventor” of the mule, were the mule to be a new invention, could not claim patentability. If the Chinese succeed in their present attempts with artificial insemination to cross-breed a human being with a chimpanzee, producing the novel and useful “humanzee,” it would be arguably patentable matter—if the Court sticks to its interpretation and Congress does not act. These examples may be farfetched but they serve to illustrate the point: there is something obviously and immediately disquieting about the human ownership of an entire living species, even one brought into being with the partial aid of art.
This bizarre new prospect, that one man could own—albeit for a limited time—an entire species, does indeed invite us to rethink the reasons why we permit ownership of any animals. There is a sense in which the former is but the logical extension of the latter, both instances of the possession and exploitation of living nature for human needs and wants, and this logical extension as limiting case might in fact illuminate problematic aspects of our age-old and familiar practice of domesticating plants and animals. Still, there are significant differences which, though they do not fully explain our repugnance at the notion of owning a species, suggest that our disquiet is not due just to the novelty and audacity of the idea.
If usefulness justifies ownership, it also defines its justifiable limits. Ownership of animals, even of large herds, presupposes the usefulness of each animal to the owner. Even when animals are kept for their beauty or companionship, possession is reasonable only on a human scale, that is, on a scale that permits individual appreciation or relation. We do not endorse possession for the sake of possession: the thought of a man buying up and collecting all the world’s camels or giraffes or horses is repulsive, though nothing in the law prevents it. To own more of living nature than what one needs for one’s own life and livelihood is hard to justify. Even harder is it to justify such monopoly when the sole purpose is to exclude others from similar benefits.
Ownership also carries with it responsibility, not only for the living beings but also to other human beings for what the animals inadvertently do. Indeed, living things, unlike true artifacts, have a life of their own and ways that we cannot simply predict or control:
And if one man’s ox hurt another’s, so that it dieth; then they shall sell the live ox, and divide the price of it; and the dead also they shall divide. Or if it be known that the ox was wont to gore in time past, and its owner hath not kept it in; he shall surely pay ox for ox, and the dead beast shall be his own. (Exodus 21: 35-36)
Can one exercise responsibility for an entire species, especially species that reproduce prodigiously and are hard to confine? If one of Chakrabarty’s bacteria escaped from his laboratory, can he be held responsible for the mischief it causes? If Chakrabarty’s bacteria find their way into an oil well or an oil-storage tank, shall he pay drop for drop? For they were wont to gore in time past and the owner hath not kept them in. And (while thinking about fugitive bacteria) if one of Chakrabarty’s technicians going on vacation inadvertently carries—on his skin or clothing or in his digestive tract—one of the microbes from its laboratory confinement in Illinois to freedom in Missouri where it becomes fruitful and multiplies, must all the billions of progeny be returned to Illinois? Will the Supreme Court, in upholding Chakrabarty’s patent claims of ownership, write a new Dred-Scott decision?
Be this as it may, the implicit teaching about ownership of life in the present Supreme Court decision is indeed problematic. It is one thing to own a mule; it is another to own mule.3 Admittedly, bacteria are far away from mules. But the principles invoked, the reasoning, and the stance toward nature go all the way to mules, and beyond.
What is the principled limit to this beginning extension of the domain of private ownership and dominion over living nature? Is it not clear, if life is a continuum, that there are no visible or clear limits, once we admit living species under the principle of ownership? The principle used in Chakrabarty says that there is nothing in the nature of a being, no, not even in the human patenter himself, that makes him immune to being patented: not what he is, but only the “accident” of his non-man-made origin renders man himself a non-patentable organism. If a genetically engineered organism may be owned because it was genetically engineered, what would we conclude about a genetically altered or engineered human being? To be sure, in general it makes sense to allow people to own what they have made, because they have artfully made it. But to respect art without respect for life is finally self-contradictory. For human art depends on the human artificer, whose inventive mind depends on his living body, not only to sustain it that he might practice its cleverness, but also because the ends of his artfulness emerge from the inner needs and aspirations of his embodied life.
Finally, the exalted and mastering status of human art claims too much and too little for itself. It claims too much because it ignores that art can only put together or alter what natural powers beyond human control will allow. In the present case, our inventor even had nature’s active assistance; for it is not strictly true, as the Court claims, that “his discovery is not nature’s handiwork, but his own.” Chakrabarty did not himself create the new bacterium. Rather, he played the matchmaker for a shotgun wedding and the selector of its progeny, while the living organisms did the work. He mixed together plasmids (carrying genes for metabolizing hydrocarbons) produced by and isolated from certain oil-degrading bacterial species and incubated them with the hardier Pseudomonas species, which bacteria all by themselves incorporated the plasmids. By selecting conditions that would support growth only of the plasmid-containing Pseudomonas hybrid, Chakrabarty obtained “his” novel strain. Though the process was—in many senses—“creative” and “his own,” the novel organism was not his creature.
Even in true compositions of matter, that is, when chemicals are placed together to produce a new mixture or compound, nature is commanded only as she is obeyed. The potentialities of given matter may be exploited, but they cannot be artfully created. The laws of nature permit prediction and control of phenomena, but they too are not of our making and cannot be transgressed. One might say, what Nature’s God keeps asunder, no man can put together. Man’s ability to change nature is, in principle and in practice, always consistent with and limited by nature’s unchanging ground.
Ironically, in its pride, human innovativeness also respects itself too little, because it lacks self-understanding. It fails to appreciate its source in the permanent power of mind, given to human beings but not of their own making. Our inventiveness is not our invention; neither are the truths it discovers.
The Court acknowledges that “Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity.” The reason given is curious: “Such discoveries are manifestations of . . . nature, free to all men and reserved exclusively to none.” The Court fails to appreciate the deeper reason why a truth cannot be patented. Once it is published, it is sharable. To know it is to make it “your own.” But truth is “your own” in a very special way, unlike your other “possessions.” The greatest thinkers have understood that truths are neither private nor property, that they come unbidden to mind, mysteriously, and that insight is neither at one’s disposal nor of one’s own making. Homer, the greatest of the makers, assigns credit to the Muse. Finally, the claim of “intellectual property” is unfounded, even for “inventions.”
In the ever-changing being that is given to living organisms, the two poles of natural permanence—mobile matter and sensitive awareness, culminating in mind—are bound together. In human beings, living nature at last becomes conscious of itself. If we are sober in our practice and mindful in our thought, it is given to us human beings to learn our place in the natural whole and to discover something of its distinctive beauty and mysterious ground. Without such self-knowledge, the project for mastery and possession of nature is a Faustian bargain. Reacquiring a respect for our relatives, the ever-changing living forms, could regain for us a much needed recognition and appreciation of the natural and unchanging source of all change.
1 The Federalist's, explanation and defense of this provision, to which we shall refer again, comprises the following brief paragraph:
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point by laws passed at the instance of Congress.
The fourth sentence seems to be a conclusion from the first three. Since the second and third deal with “claims of individuals,” we infer that the first considers “the public good.” It is worth noting that the extension of the common-law teaching on copyright to cover “the right to useful inventions” is treated here as an American innovation, albeit one that can be adjudged “with equal reason.”
2 The court opinion quotes at length from the still authoritative doctrine, formulated in his 1880's textbook of patent law by Albert Henry Walker, the court's own additions to his text being noted by parenthesis:
An important question, relevant to utility in this aspect, may hereafter arise and call for judicial decision. It is perhaps true, for example, that the invention of Colt's revolver was injurious to the morals, and injurious to the health, and injurious to the good order of society. That instrument of death may have been injurious to morals, in tending to tempt and to promote the gratification of private revenge. It may have been injurious to health, in that it is very liable to accidental discharge, and thereby to cause wounds, and even homicide. It may also have been injurious to good order, especially in the newer parts of the country, because it facilitates and increases private warfare among frontiersmen. On the other hand, the revolver, by furnishing a ready means of self-defense, may sometimes have promoted morals and health and good order. By what test is utility to be determined in such cases? Is it to be done by balancing the good functions with the evil functions? Or is everything useful within the meaning of the law, if it is used (or is designed and adapted to be used) to accomplish a good result, though in fact it is oftener used (or is as well, or even better, adapted to be used) to accomplish a bad one? Or is utility negatived by the mere fact that the thing in question is sometimes injurious to morals, or to health, or to good order? The third hypothesis cannot stand, because if it could, it would be fatal to patents for steam engines, dynamos, electric railroads, and indeed many of the noblest inventions of the nineteenth century. The first hypothesis cannot stand, because if it could, it would make the validity of the patents to depend on a question of fact to which it would often be impossible to give a reliable answer. The second, hypothesis is the only one which is consistent with the reason of the case, and with the practical construction which the courts have given to the statutory requirement of utility. (Emphasis added.)
Does the doctrine of utility enunciated in the emphasized passage truly serve the public interest? Are Walker's three options exhaustive? And is not even the first hypothesis, as stated, a plausible principle for at least those cases in which it would not be impossible to give a reliable answer to the balance between benefits and harms to the general welfare?
3 The argument should cause us to reconsider the wisdom of permitting ownership even of plant species, made possible by the plant patent laws of 1930 and 1970.
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Their coming-and-going polka—now you see ’im, now you don’t—consumed the first 10 days of March. One week Cohn was in the driver’s seat of U.S. economic policy, steering his boss into a comprehensive overhaul of the tax code and preparing him for a huge disgorgement of taxpayer money to repair some nebulous entity called “our crumbling infrastructure.” The next week Cohn had disappeared and in his place at the president’s side Navarro suddenly materialized. With Navarro’s encouragement, the president unexpectedly announced hefty, world-wobbling tariffs on steel and aluminum imports. At first the financial markets tumbled, and nobody in Washington, including the president’s friends, seemed happy. Nobody, that is, except Navarro, whose Cheshire-cat grin quickly became unavoidable on the alphabet-soup channels of cable news. It’s the perfect place for him, front and center, trying to disentangle the conflicting strands of the president’s economic policy. Far more than Cohn, the president’s newest and most powerful economic adviser is a suitable poster boy for Trumpism, whatever that might be.
So where, the capital wondered, did this Navarro fellow come from? (The question So where did this Cohn guy go? barely lasted a news cycle.) Insiders and political obsessives dimly remembered Navarro from Trump’s presidential campaign. With Wilbur Ross, now the secretary of commerce, Navarro wrote the most articulate brief for the Trump economic plan in the months before the election, which by my reckoning occurred roughly 277 years ago. (Ross is also Navarro’s co-conspirator in pushing the steel tariffs. They’re an Odd Couple indeed: Navarro is well-coiffed and tidy and as smooth as a California anchorman, while Ross is what Barney Fife might have looked like if he’d given up his job as Mayberry’s deputy sheriff and gotten a degree in mortuary science.) The Navarro-Ross paper drew predictable skepticism from mainstream economists and their proxies in the press, particularly its eye-popping claim that Trump’s “trade policy reforms” would generate an additional $1.7 trillion in government revenue over the next 10 years.
Navarro is nominally a professor at University of California, Irvine. His ideological pedigree, like the president’s, is that of a mongrel. After a decade securing tenure by writing academic papers (“A Critical Comparison of Utility-type Ratemaking Methodologies in Oil Pipeline Regulation”), he set his attention on politics. In the 1990s, he earned the distinction of losing four political races in six years, all in San Diego or its surrounding suburbs—one for mayor, another for county supervisor, another for city council. He was a Democrat in those days, as Trump was; he campaigned against sprawl and for heavy environmental regulation. In 1996, he ran for Congress as “The Democrat Newt Gingrich Fears Most.” The TV actor Ed Asner filmed a commercial for him. This proved less helpful than hoped when his Republican opponent reminded voters that a few years earlier, Asner had been a chief fundraiser for the Communist guerrillas in El Salvador.
After that defeat, Navarro got the message and retired from politics. He returned to teaching, became an off-and-on-again Republican, and set about writing financial potboilers, mostly on investment strategies for a world increasingly unreceptive to American leadership. One of them, Death by China (2011), purported to describe the slow but inexorable sapping of American wealth and spirit through Chinese devilry. As it happened, this was Donald Trump’s favorite theme as well. From the beginning of his 40-year public career, Trump has stuck to his insistence that someone, in geo-economic terms, is bullying this great country of his. The identity of the bully has varied over time: In the 1980s, it was the Soviets who, following their cataclysmic implosion, gave way to Japan, which was replaced, after its own economic collapse, by America’s neighbors to the north and south, who have been joined, since the end of the last decade, by China. In Death by China, the man, the moment, and the message came together with perfect timing. Trump loved it.
It’s not clear that he read it, however. Trump is a visual learner, as the educational theorists used to say. He will retain more from Fox and Friends as he constructs his hair in the morning than from a half day buried in a stack of white papers from the Department of Labor. When Navarro decided to make a movie of the book, directed by himself, Trump attended a screening and lustily endorsed it. You can see why. Navarro’s use of animation is spare but compelling; the most vivid image shows a dagger of Asiatic design plunging (up to the hilt and beyond!) into the heart of a two-dimensional map of the U.S., causing the country’s blood to spray wildly across the screen, then seep in rivulets around the world. It’s Wes Cravenomics.
Most of the movie, however, is taken up by talking heads. Nearly everyone of these heads is attached to a left-wing Democrat, a socialist, or, in a couple of instances, an anarchist from the Occupy movement. Watched today, Death by China is a reminder of how lonely—how marginal—the anti-China obsession has been. This is not to its discredit; yesterday’s fringe often becomes today’s mainstream, just as today’s consensus is often disproved by the events of tomorrow. Not so long ago, for instance, the establishment catechism declared that economic liberalization and the prosperity it created led inexorably to political liberalization; from free markets, we were told, came free societies. In the last generation, China has put this fantasy to rest. Only the willfully ignorant would deny that the behavior of the Chinese government, at home and abroad, is the work of swine. Even so, the past three presidents have seen China only as a subject for scolding, never retaliation.
And this brings us to another mystery of Trumpism, as Navarro embodies it. Retaliation against China and its bullying trade practices is exactly what Trump has promised as both candidate and president. More than a year into his presidency, with his tariffs on steel and aluminum, he has struck against the bullies at last, just as he vowed to do. And the bullies, we discover, are mostly our friends—Germans, Brazilians, South Koreans, and other partners who sell us their aluminum and steel for less than we can make it ourselves. Accounting for 2 percent of U.S. steel imports, the Chinese are barely scratched in the president’s first great foray in protectionism.
In announcing the tariffs, Trump cited Chinese “dumping,” as if out of habit. Yet Navarro himself seems at a loss to explain why he and his boss have chosen to go after our friends instead of our preeminent adversary in world trade. “China is in many ways the root of the problem for all countries of the world in aluminum and steel,” he told CNN the day after the tariffs were announced. Really? How’s that? “The bigger picture is, China has tremendous overcapacity in both aluminum and steel. So what they do is, they flood the world market, and this trickles down to our shores, and to other countries.”
If that wasn’t confusing enough, we had only to wait three days. By then Navarro was telling other interviewers, “This has nothing to do with China, directly or indirectly.”
This is not the first time Trumpism has shown signs of incoherence. With Peter Navarro at the president’s side, and with Gary Cohn a fading memory, it is unlikely to be the last.
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Review of 'Political Tribes' By Amy Chua
Amy Chua has an explanation for what ails us at home and abroad: Elites keep ignoring the primacy of tribalism both in the United States and elsewhere and so are blindsided every time people act in accordance with their group instinct. In Political Tribes, she offers a survey of tribal dynamics around the globe and renders judgments about the ways in which the United States has serially misread us-and-them conflicts. In the book’s final chapters, Chua, a Yale University law professor best known for her parenting polemic Battle Hymn of the Tiger Mother, focuses on the clashing group instincts that now threaten to sunder the American body politic.
As Chua sees it, “our blindness to political tribalism abroad reflects America at both its best and worst.” Because the United States is a nation made up of diverse immigrant populations—a “supergroup”—Americans can sometimes underestimate how hard it is for people in other countries to set aside their religious or ethnic ties and find common national purpose. That’s American ignorance in its most optimistic and benevolent form. But then there’s the more noxious variety: “In some cases, like Vietnam,” she writes, “ethnically blind racism has been part of our obliviousness.”
During the Vietnam War, Chua notes, the United States failed to distinguish between the ethnically homogeneous Vietnamese majority and the Chinese minority who were targets of mass resentment. In Vietnam, national identity was built largely on historical accounts of the courageous heroes who had been repelling Chinese invaders since 111 b.c.e., when China first conquered its neighbor to the south. This defining antipathy toward the Chinese was exacerbated by the fact that Vietnam’s Chinese minority was on average far wealthier and more politically powerful than the ethnic Vietnamese masses. “Yet astonishingly,” writes Chua, “U.S. foreign policy makers during the Cold War were so oblivious to Vietnamese history that they thought Vietnam was China’s pawn—merely ‘a stalking horse for Beijing in Southeast Asia.’”
Throughout the book, Chua captures tribal conflicts in clear and engrossing prose. But as a guide to foreign policy, one gets the sense that her emphasis on tribal ties might not be able to do all the work she expects of it. The first hint comes in her Vietnam analysis. If American ignorance of Chinese–Vietnam tensions is to blame for our having fought and lost the war, what would a better understanding of such things have yielded? She gets to that, sort of. “Could we have supported Ho [Chi Minh] against the French, capitalizing on Vietnam’s historical hostility toward China to keep the Vietnamese within our sphere of influence?” Chua asks. “We’ll never know. Somehow we never saw or took seriously the enmity between Vietnam and China.” It’s hard to see the U.S.’s backing a mass-murdering Communist against a putatively democratic ally as anything but a surreal thought experiment, let alone a lost opportunity.
On Afghanistan, Chua is correct about a number of things. There are indeed long-simmering tensions between Pashtuns, Punjabs, and other tribes in the region. The U.S. did pay insufficient attention to Afghanistan in the decade leading up to 9/11. The Taliban did play on Pashtun aspirations to fuel their rise. But how, exactly, are we to understand our failures in Afghanistan as resulting from ignorance of tribal relations? The Taliban went on to forge a protective agreement with al-Qaeda that had little if anything to do with tribal ties. And it was that relationship that had tragic consequences for the United States.
Not only was Osama bin Laden not Pashtun; he was an Arab millionaire, and his terrorist organization was made up of jihadists from all around the world. If anything, it was Bin Laden’s trans-tribal movement that the U.S. should have been focused on. The Taliban-al-Qaeda alliance was based on pooling resources against perceived common threats, compatible (but not identical) religious notions, and large cash payments from Bin Laden. No American understanding of tribal relations could have interfered with that.
And while an ambitious tribe-savvy counterinsurgency strategy might have gone a long way in helping the U.S.’s war effort, there has never been broad public support for such a commitment. Ultimately, our problems in Afghanistan have less to do with neglecting tribal politics and more to do with general neglect.
In Chua’s chapter on the Iraq War, however, her paradigm aligns more closely with the facts. “Could we have done better if we hadn’t been so blind to tribal politics in Iraq?” she asks. “There’s very good evidence that the answer is yes.” Here Chua offers a concise account of the U.S.’s successful 2007 troop surge. “While the additional U.S. soldiers—sent primarily to Baghdad and Al Anbar Province—were of course a critical factor,” she writes, “the surge succeeded only because it was accompanied by a 180-degree shift in our approach to the local population.”
Chua goes into colorful detail about then colonel H.R. McMaster’s efforts to educate American troops in local Iraqi customs and his decision to position them among the local population in Tal Afar. This won the trust of Iraqis who were forthcoming with critical intelligence. She also covers the work of Col. Sean MacFarland who forged relationships with Sunni sheikhs. Those sheikhs, in turn, convinced their tribespeople to work with U.S. forces and function as a local police force. Finally, Chua explains how Gen. David Petraeus combined the work of McMaster and MacFarland and achieved the miraculous in pacifying Baghdad. In spite of U.S. gains—and the successful navigation of tribes—there was little American popular will to keep Iraq on course and, over the next few years, the country inevitably unraveled.I n writing about life in the United States, Chua is on firmer ground altogether, and her diagnostic powers are impressive. “It turns out that in America, there’s a chasm between the tribal identities of the country’s haves and have-nots,” she writes, “a chasm of the same kind wreaking political havoc in many developing and non-Western countries.” In the U.S., however, there’s a crucial difference to this dynamic, and Chua puts her finger right on it: “In America, it’s the progressive elites who have taken it upon themselves to expose the American Dream as false. This is their form of tribalism.”
She backs up this contention with statistics. Some of the most interesting revelations have to do with the Occupy movement. In actual fact, those who gathered in cities across the country to protest systemic inequality in 2012 were “disproportionately affluent.” In fact, “more than half had incomes of $75,000 or more.” Occupy faded away, as she notes, because it “attracted so few members from the many disadvantaged groups it purported to be fighting for.” Chua puts things in perspective: “Imagine if the suffragette movement hadn’t included large numbers of women, or if the civil-rights movement included very few African Americans, or if the gay-rights movement included very few gays.” America’s poorer classes, for their part, are “deeply patriotic, even if they feel they’re losing the country to distant elites who know nothing about them.”
Chua is perceptive on both the inhabitants of Trump Country and the elites who disdain them. She takes American attitudes toward professional wrestling as emblematic of the split between those who support Donald Trump and those who detest him. Trump is a bona fide hero in the world of pro wrestling; he has participated in “bouts” and was actually inducted into the WWE Hall of Fame in 2013. What WWE fans get from watching wrestling they also get from watching Trump—“showmanship and symbols,” a world held together by enticing false storylines, and, ultimately, “something playfully spectacular.” Those on the academic left, on the other hand, “are fascinated, even obsessed in a horrified way, with the ‘phenomenology’ of watching professional wrestling.” In the book’s most arresting line, Chua writes that “there is now so little interaction, commonality, and intermarriage between rural/heartland/working-class whites and urban/coastal whites that the difference between them is practically what social scientists would consider an ‘ethnic difference.’”
Of course, there’s much today dividing America along racial lines as well. While Americans of color still contend with the legacy of institutional intolerance, “it is simply a fact that ‘diversity’ policies at the most select American universities and in some sectors of the economy have had a disparate adverse impact on whites.” So, both blacks and whites (and most everyone else) feel threatened to some degree. This has sharpened the edge of identity politics on the left and right. In Chua’s reading, these tribal differences will not actually break the country apart. But, she believes, they could fundamentally and irreversibly change “who we are.”
Political Tribes, however, is no doomsday prediction. Despite our clannish resentments, Chua sees, in her daily interactions, people’s willingness to form bonds beyond those of their in-group and a relaxing of tribal ties. What’s needed is for haves and have-nots, whites and blacks, liberals and conservatives to enjoy more meaningful exposure to one another. This pat prescription would come across as criminally sappy if not for the genuinely loving and patriotic way in which Chua writes about our responsibilities as a “supergroup.” “It’s not enough that we view one another as fellow human beings,” she says, “we need to view one another as fellow Americans.” Americans as a higher ontological category than human beings—there’s poetry in that. And a healthy bit of tribalism, too.
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Then again, you know what happens when you assume.
“Here is my prediction,” Kristof wrote. “The new paramount leader, Xi Jinping, will spearhead a resurgence of economic reform, and probably some political easing as well. Mao’s body will be hauled out of Tiananmen Square on his watch, and Liu Xiaobo, the Nobel Peace Prize–winning writer, will be released from prison.”
True, Kristof conceded, “I may be wrong entirely.” But, he went on, “my hunch on this return to China, my old home, is that change is coming.”
Five years later, the Chinese economy, while large, is saddled with debt. Analysts and government officials are worried about its real-estate bubble. Despite harsh controls, capital continues to flee China. Nor has there been “some political easing.” On the contrary, repression has worsened. The Great Firewall blocks freedom of speech and inquiry, human-rights advocates are jailed, and the provinces resemble surveillance states out of a Philip K. Dick novel. Mao rests comfortably in his mausoleum. Not only did Liu Xiaobo remain a prisoner, he was also denied medical treatment when he contracted cancer, and he died in captivity in 2017.
As for Xi Jinping, he turned out not to be a reformer but a dictator. Steadily, under the guise of anti-corruption campaigns, Xi decimated alternative centers of power within the Communist Party. He built up a cult of personality around “Xi Jinping thought” and his “Chinese dream” of economic, cultural, and military strength. His preeminence was highlighted in October 2017 when the Politburo declined to name his successor. Then, in March of this year, the Chinese abolished the term limits that have guaranteed rotation in office since the death of Mao. Xi reigns supreme.
Bizarrely, this latest development seems to have come as a surprise to the American press. The headline of Emily Rauhala’s Washington Post article read: “China proposes removal of two-term limit, potentially paving way for President Xi Jinping to stay on.” Potentially? Xi’s accession to emperor-like status, wrote Julie Bogen of Vox, “could destabilize decades of progress toward democracy and instead move China even further toward authoritarianism.” Could? Bogen did not specify which “decades of progress toward democracy” she was talking about, but that is probably because, since 1989, there haven’t been any.
Xi’s assumption of dictatorial powers should not have shocked anyone who has paid the slightest bit of attention to recent Chinese history. The Chinese government, until last month a collective dictatorship, has exercised despotic control over its people since the very founding of the state in 1949. And yet the insatiable desire among media to incorporate news events into a preestablished storyline led reporters to cover the party announcement as a sudden reversal. Why? Because only then would the latest decision of an increasingly embattled and belligerent Chinese leadership fit into the prefabricated narrative that says we are living in an authoritarian moment.
For example, one article in the February 26, 2018, New York Times was headlined, “With Xi’s Power Grab, China Joins New Era of Strongmen.” CNN’s James Griffiths wrote, “While Chinese politics is not remotely democratic in the traditional sense, there are certain checks and balances within the Party system itself, with reformers and conservatives seeing their power and influence waxing and waning over time.” Checks and balances, reformers and conservatives—why, they are just like us, only within the context of a one-party state that ruthlessly brooks no dissent.
Now, we do happen to live in an era when democracy and autocracy are at odds. But China is not joining the “authoritarian trend.” It helped create and promote the trend. Next year, China’s “era of strongmen” will enter its seventh decade. The fundamental nature of the Communist regime in Beijing has not changed during this time.
My suspicion is that journalists were taken aback by Xi’s revelation of his true nature because they, like most Western elites, have bought into the myth of China’s “peaceful rise.” For decades, Americans have been told that China’s economic development and participation in international organizations and markets would lead inevitably to its political liberalization. What James Mann calls “the China fantasy” manifested itself in the leadership of both major political parties and in the pronouncements of the chattering class across the ideological spectrum.
Indeed, not only was the soothing scenario of China as a “responsible stakeholder” on the glide path to democracy widespread, but media figures also admonished Americans for not living up to Chinese standards. “One-party autocracy certainly has its drawbacks,” Tom Friedman conceded in an infamous 2009 column. “But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages.” For instance, Friedman went on, “it is not an accident that China is committed to overtaking us in electric cars, solar power, energy efficiency, batteries, nuclear power, and wind power.” The following year, during an episode of Meet the Press, Friedman admitted, “I have fantasized—don’t get me wrong—but what if we could just be China for a day?” Just think of all the electric cars the government could force us to buy.
This attitude toward Chinese Communism as a public-policy exemplar became still more pronounced after Donald Trump was elected president on an “America First” agenda. China’s theft of intellectual property, industrial espionage, harassment and exploitation of Western companies, currency manipulation, mercantilist subsidies and tariffs, chronic pollution, military buildup, and interference in democratic politics and university life did not prevent it from proclaiming itself the defender of globalization and environmentalism.
When Xi visited the Davos World Economic Forum last year, the Economist noted the “fawning reception” that greeted him. The speech he delivered, pledging to uphold the international order that had facilitated his nation’s rise as well as his own, received excellent reviews. On January 15, 2017, Fareed Zakaria said, “In an America-first world, China is filling the vacuum.” A few days later, Charlie Rose told his CBS audience, “It’s almost like China is saying, ‘we are the champions of globalization, not the United States.’” And on January 30, 2017, the New York Times quoted a “Berlin-based private equity fund manager,” who said, “We heard a Chinese president becoming leader of the free world.”
The chorus of praise for China grew louder last spring when Trump announced American withdrawal from an international climate accord. In April 2017, Rick Stengel said on cable television that China is becoming “the global leader on the environment.” On June 8, a CBS reporter said that Xi is “now viewed as the world’s leader on climate change.” On June 19, 2017, on Bloomberg news, Dana Hull said, “China is the leader on climate change, especially when it comes to autos.” Also that month, one NBC anchor asked Senator Mike Lee of Utah, “Are you concerned at all that China may be seen as sort of the global leader when it comes to bringing countries together, more so than the United States?”
Last I checked, Xi Jinping’s China has not excelled at “bringing countries together,” unless—like Australia, Japan, South Korea, and Vietnam—those countries are allying with the United States to balance against China. What instead should concern Senator Lee, and all of us, is an American media filled with people suckered by foreign propaganda that happens to coincide with their political preferences, and who are unable to make elementary distinctions between tyrannical governments and consensual ones.
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Marx didn’t supplant old ideas about money and commerce; he intensified them
rom the time of antiquity until the Enlightenment, trade and the pursuit of wealth were considered sinful. “In the city that is most finely governed,” Aristotle wrote, “the citizens should not live a vulgar or a merchant’s way of life, for this sort of way of life is ignoble and contrary to virtue.”1 In Plato’s vision of an ideal society (the Republic) the ruling “guardians” would own no property to avoid tearing “the city in pieces by differing about ‘mine’ and ‘not mine.’” He added that “all that relates to retail trade, and merchandise, and the keeping of taverns, is denounced and numbered among dishonourable things.” Only noncitizens would be allowed to indulge in commerce. A citizen who defies the natural order and becomes a merchant should be thrown in jail for “shaming his family.”
At his website humanprogress.org, Marian L. Tupy quotes D.C. Earl of the University of Leeds, who wrote that in Ancient Rome, “all trade was stigmatized as undignified … the word mercator [merchant] appears as almost a term of abuse.” Cicero noted in the first century b.c.e. that retail commerce is sordidus (vile) because merchants “would not make any profit unless they lied constantly.”
Early Christianity expanded this point of view. Jesus himself was clearly hostile to the pursuit of riches. “For where your treasure is,” he proclaimed in his Sermon on the Mount, “there will your heart be also.” And of course he insisted that “it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God.”
The Catholic Church incorporated this view into its teachings for centuries, holding that economics was zero-sum. “The Fathers of the Church adhered to the classical assumption that since the material wealth of humanity was more or less fixed, the gain of some could only come at a loss to others,” the economic historian Jerry Muller explains in his book The Mind and the Market: Capitalism in Western Thought. As St. Augustine put it, “Si unus non perdit, alter non acquirit”—“If one does not lose, the other does not gain.”
The most evil form of wealth accumulation was the use of money to make money—usury. Lending money at interest was unnatural, in this view, and therefore invidious. “While expertise in exchange is justly blamed since it is not according to nature but involves taking from others,” Aristotle insisted, “usury is most reasonably hated because one’s possessions derive from money itself and not from that for which it was supplied.” In the Christian tradition, the only noble labor was physical labor, and so earning wealth from the manipulation of money was seen as inherently ignoble.
In the somewhat more prosperous and market-driven medieval period, Thomas Aquinas helped make private property and commerce more acceptable, but he did not fundamentally break with the Aristotelian view that trade was suspect and the pursuit of wealth was sinful. The merchant’s life was in conflict with the teachings of Christianity if it led to pride or avarice. “Echoing Aristotle,” Muller writes, “Aquinas reasserted that justice in the distribution of material goods was fulfilled when someone received in proportion to his status, office, and function within the institutions of an existing, structured community. Hence Aquinas decried as covetousness the accumulation of wealth to improve one’s place in the social order.”
In the medieval mind, Jews were seen as a kind of stand-in for mercantile and usurious sinfulness. Living outside the Christian community, but within the borders of Christendom, they were allowed to commit the sin of usury on the grounds that their souls were already forfeit. Pope Nicholas V insisted that it is much better that “this people should perpetrate usury than that Christians should engage in it with one another.”2 The Jews were used as a commercial caste the way the untouchables of India were used as a sanitation caste. As Montesquieu would later observe in the 16th century, “whenever one prohibits a thing that is naturally permitted or necessary, the people who engage in it are regarded as dishonest.” Thus, as Muller has argued, anti-Semitism has its roots in a kind of primitive anti-capitalism.
Early Protestantism did not reject these views. It amplified them.3 Martin Luther despised commerce. “There is on earth no greater enemy of man, after the Devil, than a gripe-money and usurer, for he wants to be God over all men…. Usury is a great, huge monster, like a werewolf …. And since we break on the wheel and behead highwaymen, murderers, and housebreakers, how much more ought we to break on the wheel and kill … hunt down, curse, and behead all usurers!”4
It should therefore come as no surprise that Luther’s views of Jews, the living manifestation of usury in the medieval mind, were just as immodest. In his 1543 treatise On the Jews and Their Lies, he offers a seven-point plan on how to deal with them:
- “First, to set fire to their synagogues or schools .…This is to be done in honor of our Lord and of Christendom, so that God might see that we are Christians …”
- “Second, I advise that their houses also be razed and destroyed.”
- “Third, I advise that all their prayer books and Talmudic writings, in which such idolatry, lies, cursing, and blasphemy are taught, be taken from them.”
- “Fourth, I advise that their rabbis be forbidden to teach henceforth on pain of loss of life and limb… ”
- “Fifth, I advise that safe-conduct on the highways be abolished completely for the Jews. For they have no business in the countryside … ”
- “Sixth, I advise that usury be prohibited to them, and that all cash and treasure of silver and gold be taken from them … ”
- “Seventh, I recommend putting a flail, an ax, a hoe, a spade, a distaff, or a spindle into the hands of young, strong Jews and Jewesses and letting them earn their bread in the sweat of their brow.… But if we are afraid that they might harm us or our wives, children, servants, cattle, etc., … then let us emulate the common sense of other nations such as France, Spain, Bohemia, etc., … then eject them forever from the country … ”
Luther agitated against the Jews throughout Europe, condemning local officials for insufficient anti-Semitism (a word that did not exist at the time and a sentiment that was not necessarily linked to more modern biological racism). His demonization of the Jews was derived from more than anti-capitalism. But his belief that the Jewish spirit of commerce was corrupting of Christianity was nonetheless central to his indictment. He sermonized again and again that it must be cleansed from Christendom, either through conversion, annihilation, or expulsion.
Three centuries later, Karl Marx would blend these ideas together in a noxious stew.
The idea at the center of virtually all of Marx’s economic writing is the labor theory of value. It holds that all of the value of any product can be determined by the number of hours it took for a laborer or laborers to produce it. From the viewpoint of conventional economics—and elementary logic—this is ludicrous. For example, ingenuity, which may not be time-consuming, is nonetheless a major source of value. Surely it cannot be true that someone who works intelligently, and therefore efficiently, provides less value than someone who works stupidly and slowly. (Marx anticipates some of these kinds of critiques with a lot of verbiage about the costs of training and skills.) But the more relevant point is simply this: The determinant of value in an economic sense is not the labor that went into a product but the price the consumer is willing to pay for it. Whether it took an hour or a week to build a mousetrap, the value of the two products is the same to the consumer if the quality is the same.
Marx had philosophical, metaphysical, and tactical reasons for holding fast to the labor theory of value. It was essential to his argument that capitalism—or what we would now call “commerce” plain and simple—was exploitative by its very nature. In Marx, the term “exploitation” takes a number of forms. It is not merely evocative of child laborers working in horrid conditions; it covers virtually all profits. If all value is captured by labor, any “surplus value” collected by the owners of capital is by definition exploitative. The businessman who risks his own money to build and staff an innovative factory is not adding value; rather, he is subtracting value from the workers. Indeed, the money he used to buy the land and the materials is really just “dead labor.” For Marx, there was an essentially fixed amount of “labor-power” in society, and extracting profit from it was akin to strip-mining a natural resource. Slavery and wage-labor were different forms of the same exploitation because both involved extracting the common resource. In fact, while Marx despised slavery, he thought wage-labor was only a tiny improvement because wage-labor reduced costs for capitalists in that they were not required to feed or clothe wage laborers.
Because Marx preached revolution, we are inclined to consider him a revolutionary. He was not. None of this was a radical step forward in economic or political thinking. It was, rather, a reaffirmation of the disdain of commerce that starts with Plato and Aristotle and found new footing in Christianity. As Jerry Muller (to whom I am obviously very indebted) writes:
To a degree rarely appreciated, [Marx] merely recast the traditional Christian stigmatization of moneymaking into a new vocabulary and reiterated the ancient suspicion against those who used money to make money. In his concept of capitalism as “exploitation” Marx returned to the very old idea that money is fundamentally unproductive, that only those who live by the sweat of their brow truly produce, and that therefore not only interest, but profit itself, is always ill-gotten.
In his book Karl Marx: A Nineteenth-Century Life, Jonathan Sperber suggests that “Marx is more usefully understood as a backward-looking figure, who took the circumstances of the first half of the nineteenth century and projected them into the future, than as a surefooted and foresighted interpreter of historical trends.”5
Marx was a classic bohemian who resented the fact that he spent his whole life living off the generosity of, first, his parents and then his collaborator Friedrich Engels. He loathed the way “the system” required selling out to the demands of the market and a career. The frustrated poet turned to the embryonic language of social science to express his angry barbaric yawp at The Man. “His critique of the stultifying effects of labor in a capitalist society,” Muller writes, “is a direct continuation of the Romantic conception of the self and its place in society.”
In other words, Marx was a romantic, not a scientist. Romanticism emerged as a rebellion against the Enlightenment, taking many forms—from romantic poetry to romantic nationalism. But central to all its forms was the belief that modern, commercial, rational life is inauthentic and alienating, and cuts us off from our true natures.
As Rousseau, widely seen as the first romantic, explained in his Discourse on the Moral Effects of the Arts and Sciences, modernity—specifically the culture of commerce and science—was oppressive. The baubles of the Enlightenment were mere “garlands of flowers” that concealed “the chains which weigh [men] down” and led people to “love their own slavery.”
This is a better context for understanding Marx’s and Engels’s hatred of the division of labor and the division of rights and duties. Their baseline assumption, like Rousseau’s, is that primitive man lived a freer and more authentic life before the rise of private property and capitalism. “Within the tribe there is as yet no difference between rights and duties,” Engels writes in Origins of the Family, Private Property, and the State. “The question whether participation in public affairs, in blood revenge or atonement, is a right or a duty, does not exist for the Indian; it would seem to him just as absurd as the question whether it was a right or a duty to sleep, eat, or hunt. A division of the tribe or of the gens into different classes was equally impossible.”
For Marx, then, the Jew might as well be the real culprit who told Eve to bite the apple. For the triumph of the Jew and the triumph of money led to the alienation of man. And in truth, the term “alienation” is little more than modern-sounding shorthand for exile from Eden. The division of labor encourages individuality, alienates us from the collective, fosters specialization and egoism, and dethrones the sanctity of the tribe. “Money is the jealous god of Israel, in face of which no other god may exist,” Marx writes. “Money degrades all the gods of man—and turns them into commodities. Money is the universal self-established value of all things. It has, therefore, robbed the whole world—both the world of men and nature—of its specific value. Money is the estranged essence of man’s work and man’s existence, and this alien essence dominates him, and he worships it.”
Marx’s muse was not analytical reason, but resentment. That is what fueled his false consciousness. To understand this fully, we should look at how that most ancient and eternal resentment—Jew-hatred—informed his worldview.
The atheist son of a Jewish convert to Lutheranism and the grandson of a rabbi, Karl Marx hated capitalism in no small part because he hated Jews. According to Marx and Engels, Jewish values placed the acquisition of money above everything else. Marx writes in his infamous essay “On the Jewish Question”:
Let us consider the actual, worldly Jew—not the Sabbath Jew … but the everyday Jew.
Let us not look for the secret of the Jew in his religion, but let us look for the secret of his religion in the real Jew.
What is the secular basis of Judaism? Practical need, self-interest. What is the worldly religion of the Jew? Huckstering. What is his worldly God? Money [Emphasis in original]
The spread of capitalism, therefore, represented a kind of conquest for Jewish values. The Jew—at least the one who set up shop in Marx’s head—makes his money from money. He adds no value. Worse, the Jews considered themselves to be outside the organic social order, Marx complained, but then again that is what capitalism encourages—individual independence from the body politic and the selfish (in Marx’s mind) pursuit of individual success or happiness. For Marx, individualism was a kind of heresy because it meant violating the sacred bond of the community. Private property empowered individuals to live as individuals “without regard to other men,” as Marx put it.
This is the essence of Marx’s view of alienation. Marx believed that people were free, creative beings but were chained to their role as laborers in the industrial machine. The division of labor inherent to capitalist society was alienating and inauthentic, pulling us out of the communitarian natural General Will. The Jew was both an emblem of this alienation and a primary author of it:
The Jew has emancipated himself in a Jewish manner, not only because he has acquired financial power, but also because, through him and also apart from him, money has become a world power and the practical Jewish spirit has become the practical spirit of the Christian nations. The Jews have emancipated themselves insofar as the Christians have become Jews. [Emphasis in original]
He adds, “The god of the Jews has become secularized and has become the god of the world. The bill of exchange is the real god of the Jew. His god is only an illusory bill of exchange.” And he concludes: “In the final analysis, the emancipation of the Jews is the emancipation of mankind from Judaism.” [Emphasis in original]
In The Holy Family, written with Engels, he argues that the most pressing imperative is to transcend “the Jewishness of bourgeois society, the inhumanity of present existence, which finds its highest embodiment in the system of money.” [Emphasis in original]
In his “Theories of Surplus Value,” he praises Luther’s indictment of usury. Luther “has really caught the character of old-fashioned usury, and that of capital as a whole.” Marx and Engels insist that the capitalist ruling classes, whether or not they claim to be Jewish, are nonetheless Jewish in spirit. “In their description of the confrontation of capital and labor, Marx and Engels resurrected the traditional critique of usury,” Muller observes. Or, as Deirdre McCloskey notes, “the history that Marx thought he perceived went with his erroneous logic that capitalism—drawing on an anticommercial theme as old as commerce—just is the same thing as greed.”6 Paul Johnson is pithier: Marx’s “explanation of what was wrong with the world was a combination of student-café anti-Semitism and Rousseau.”7
For Marx, capital and the Jew are different faces of the same monster: “The capitalist knows that all commodities—however shabby they may look or bad they may smell—are in faith and in fact money, internally circumcised Jews, and in addition magical means by which to make more money out of money.”
Marx’s writing, particularly on surplus value, is drenched with references to capital as parasitic and vampiric: “Capital is dead labor which, vampire-like, lives only by sucking living labor, and lives the more, the more labor it sucks. The time during which the worker works is the time during which the capitalist consumes the labor-power he has bought from him.” The constant allusions to the eternal wickedness of the Jew combined with his constant references to blood make it hard to avoid concluding that Marx had simply updated the blood libel and applied it to his own atheistic doctrine. His writing is replete with references to the “bloodsucking” nature of capitalism. He likens both Jews and capitalists (the same thing in his mind) to life-draining exploiters of the proletariat.
Marx writes how the extension of the workday into the night “only slightly quenches the vampire thirst for the living blood of labor,” resulting in the fact that “the vampire will not let go ‘while there remains a single muscle, sinew or drop of blood to be exploited.’” As Mark Neocleous of Brunel University documents in his brilliant essay, “The Political Economy of the Dead: Marx’s Vampires,” the images of blood and bloodsucking capital in Das Kapital are even more prominent motifs: “Capital ‘sucks up the worker’s value-creating power’ and is dripping with blood. Lacemaking institutions exploiting children are described as ‘blood-sucking,’ while U.S. capital is said to be financed by the ‘capitalized blood of children.’ The appropriation of labor is described as the ‘life-blood of capitalism,’ while the state is said to have here and there interposed itself ‘as a barrier to the transformation of children’s blood into capital.’”
Marx’s vision of exploitative, Jewish, bloodsucking capital was an expression of romantic superstition and tribal hatred. Borrowing from the medieval tradition of both Catholics as well as Luther himself, not to mention a certain folkloric poetic tradition, Marx invented a modern-sounding “scientific” theory that was in fact reactionary in every sense of the word. “If Marx’s vision was forward-looking, its premises were curiously archaic,” Muller writes. “As in the civic republican and Christian traditions, self-interest is the enemy of social cohesion and of morality. In that sense, Marx’s thought is a reversion to the time before Hegel, Smith, or Voltaire.”
In fairness to Marx, he does not claim that he wants to return to a feudal society marked by inherited social status and aristocracy. He is more reactionary than that. The Marxist final fantasy holds that at the end of history, when the state “withers away,” man is liberated from all exploitation and returns to the tribal state in which there is no division of labor, no dichotomy of rights and duties.
Marx’s “social science” was swept into history’s dustbin long ago. What endured was the romantic appeal of Marxism, because that appeal speaks to our tribal minds in ways we struggle to recognize, even though it never stops whispering in our ears.
It is an old conservative habit—one I’ve been guilty of myself—of looking around society and politics, finding things we don’t like or disagree with, and then running through an old trunk of Marxist bric-a-brac to spruce up our objections. It is undeniably true that the influence of Marx, particularly in the academy, remains staggering. Moreover, his indirect influence is as hard to measure as it is extensive. How many novels, plays, and movies have been shaped by Marx or informed by people shaped by Marx? It’s unknowable.
And yet, this is overdone. The truth is that Marx’s ideas were sticky for several reasons. First, they conformed to older, traditional ways of seeing the world—far more than Marxist zealots have ever realized. The idea that there are malevolent forces above and around us, manipulating our lives and exploiting the fruits of our labors, was hardly invented by him. In a sense, it wasn’t invented by anybody. Conspiracy theories are as old as mankind, stretching back to prehistory.
There’s ample reason—with ample research to back it up—to believe that there is a natural and universal human appetite for conspiracy theories. It is a by-product of our adapted ability to detect patterns, particularly patterns that may help us anticipate a threat—and, as Mark van Vugt has written, “the biggest threat facing humans throughout history has been other people, particularly when they teamed up against you.”8
To a very large extent, this is what Marxism is —an extravagant conspiracy theory in which the ruling classes, the industrialists, and/or the Jews arrange affairs for their own benefit and against the interests of the masses. Marx himself was an avid conspiracy theorist, as so many brilliant bohemian misfits tend to be, believing that the English deliberately orchestrated the Irish potato famine to “carry out the agricultural revolution and to thin the population of Ireland down to the proportion satisfactory to the landlords.” He even argued that the Crimean War was a kind of false-flag operation to hide the true nature of Russian-English collusion.
Contemporary political figures on the left and the right routinely employ the language of exploitation and conspiracy. They do so not because they’ve internalized Marx, but because of their own internal psychological architecture. In Rolling Stone, Matt Taibbi, the talented left-wing writer, describes Goldman Sachs (the subject of quite a few conspiracy theories) thus:
The first thing you need to know about Goldman Sachs is that it’s everywhere. The world’s most powerful investment bank is a great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money. In fact, the history of the recent financial crisis, which doubles as a history of the rapid decline and fall of the suddenly swindled dry American empire, reads like a Who’s Who of Goldman Sachs graduates.
Marx would be jealous that he didn’t think of the phrase “the great vampire squid.”
Meanwhile, Donald Trump has occasionally traded in the same kind of language, even evoking some ancient anti-Semitic tropes. “Hillary Clinton meets in secret with international banks to plot the destruction of U.S. sovereignty in order to enrich these global financial powers, her special-interest friends, and her donors,” Trump said in one campaign speech. “This election will determine if we are a free nation or whether we have only the illusion of democracy, but are in fact controlled by a small handful of global special interests rigging the system, and our system is rigged.” He added: “Our corrupt political establishment, that is the greatest power behind the efforts at radical globalization and the disenfranchisement of working people. Their financial resources are virtually unlimited, their political resources are unlimited, their media resources are unmatched.”
A second reason Marxism is so successful at fixing itself to the human mind is that it offers—to some—a palatable substitute for the lost certainty of religious faith. Marxism helped to restore certainty and meaning for huge numbers of people who, having lost traditional religion, had not lost their religious instinct. One can see evidence of this in the rhetoric used by Marxist and other socialist revolutionaries who promised to deliver a “Kingdom of Heaven on Earth.”
The 20th-century philosopher Eric Voegelin argued that Enlightenment thinkers like Voltaire had stripped the transcendent from its central place in human affairs. God had been dethroned and “We the People”—and our things—had taken His place. “When God is invisible behind the world,” Voegelin writes, “the contents of the world will become new gods; when the symbols of transcendent religiosity are banned, new symbols develop from the inner-worldly language of science to take their place.”9
The religious views of the Romantic writers and artists Marx was raised on (and whom he had once hoped to emulate) ran the gamut from atheism to heartfelt devotion, but they shared an anger and frustration with the way the new order had banished the richness of faith from the land. “Now we have got the freedom of believing in public nothing but what can be rationally demonstrated,” the writer Johann Heinrich Merck complained. “They have deprived religion of all its sensuous elements, that is, of all its relish. They have carved it up into its parts and reduced it to a skeleton without color and light…. And now it’s put in a jar and nobody wants to taste it.”10
When God became sidelined as the source of ultimate meaning, “the people” became both the new deity and the new messianic force of the new order. In other words, instead of worshipping some unseen force residing in Heaven, people started worshipping themselves. This is what gave nationalism its spiritual power, as the volksgeist, people’s spirit, replaced the Holy Spirit. The tribal instinct to belong to a sacralized group took over. In this light, we can see how romantic nationalism and “globalist” Marxism are closely related. They are both “re-enchantment creeds,” as the philosopher-historian Ernest Gellner put it. They fill up the holes in our souls and give us a sense of belonging and meaning.
For Marx, the inevitable victory of Communism would arrive when the people, collectively, seized their rightful place on the Throne of History.11 The cult of unity found a new home in countless ideologies, each of which determined, in accord with their own dogma, to, in Voegelin’s words, “build the corpus mysticum of the collectivity and bind the members to form the oneness of the body.” Or, to borrow a phrase from Barack Obama, “we are the ones we’ve been waiting for.”
In practice, Marxist doctrine is more alienating and dehumanizing than capitalism will ever be. But in theory, it conforms to the way our minds wish to see the world. There’s a reason why so many populist movements have been so easily herded into Marxism. It’s not that the mobs in Venezuela or Cuba started reading The Eighteenth Brumaire and suddenly became Marxists. The peasants of North Vietnam did not need to read the Critique of the Gotha Program to become convinced that they were being exploited. The angry populace is always already convinced. The people have usually reached the conclusion long ago. They have the faith; what they need is the dogma. They need experts and authority figures—priests!—with ready-made theories about why the masses’ gut feelings were right all along. They don’t need Marx or anybody else to tell them they feel ripped off, disrespected, exploited. They know that already. The story Marxists tell doesn’t have to be true. It has to be affirming. And it has to have a villain. The villain, then and now, is the Jew.
1 Muller, Jerry Z.. The Mind and the Market: Capitalism in Western Thought (p. 5). Knopf Doubleday Publishing Group. Kindle Edition.
2 Muller, Jerry Z. Capitalism and the Jews (pp. 23-24). Princeton University Press. Kindle Edition.
3 Luther’s economic thought, reflected in his “Long Sermon on Usury of 1520” and his tract On Trade and Usury of 1524, was hostile to commerce in general and to international trade in particular, and stricter than the canonists in its condemnation of moneylending. Muller, Jerry Z.. Capitalism and the Jews (p. 26). Princeton University Press. Kindle Edition.
4 Quoted approvingly in Marx, Karl and Engels, Friedrich. “Capitalist Production.” Capital: Critical Analysis of Production, Volume II. Samuel Moore and Edward Aveling, trans. London: Swan Sonnenschein, Lowrey, & Co. 1887. p. 604
5 Sperber, Jonathan. “Introduction.” Karl Marx: A Nineteenth-Century Life. New York: Liverwright Publishing Corporation. 2013. xiii.
6 McCloskey, Deirdre. Bourgeois Dignity: Why Economics Can’t Explain the Modern World. Chicago: University of Chicago Press. p. 142
7 Johnson, Paul. Intellectuals (Kindle Locations 1325-1326). HarperCollins. Kindle Edition.
8 See also: Sunstain, Cass R. and Vermeule, Adrian. “Syposium on Conspiracy Theories: Causes and Cures.” The Journal of Political Philosophy: Volume 17, Number 2, 2009, pp. 202-227. http://www.ask-force.org/web/Discourse/Sunstein-Conspiracy-Theories-2009.pdf
9 Think of the story of the Golden Calf. Moses departs for Mt. Sinai to talk with God and receive the Ten Commandments. No sooner had he left did the Israelites switch their allegiance to false idol, the Golden Calf, treating a worldly inanimate object as their deity. So it is with modern man. Hence, Voegelin’s quip that for the Marxist “Christ the Redeemer is replaced by the steam engine as the promise of the realm to come.”
10 Blanning, Tim. The Romantic Revolution: A History (Modern Library Chronicles Series Book 34) (Kindle Locations 445-450). Random House Publishing Group. Kindle Edition.
11 Marx: “Along with the constant decrease in the number of capitalist magnates, who usurp and monopolize all the advantages of this process of transformation, the mass of misery, oppression, slavery, degradation and exploitation grows; but with this there also grows the revolt of the working class, a class constantly increasing in numbers, and trained, united and organized by the very mechanism of the capitalist process of production.”
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Review of 'Realism and Democracy' By Elliott Abrams
Then, in 1966, Syrian Baathists—believers in a different transnational unite-all-the-Arabs ideology—overthrew the government in Damascus and lent their support to Palestinian guerrillas in the Jordanian-controlled West Bank to attack Israel. Later that year, a Jordanian-linked counter-coup in Syria failed, and the key figures behind it fled to Jordan. Then, on the eve of the Six-Day War in May 1967, Jordan’s King Hussein signed a mutual-defense pact with Egypt, agreeing to deploy Iraqi troops on Jordanian soil and effectively giving Nasser command and control over Jordan’s own armed forces.
This is just a snapshot of the havoc wreaked on the Middle East by the conceit of pan-Arabism. This history is worth recalling when reading Elliott Abrams’s idealistic yet clearheaded Realism and Democracy: American Foreign Policy After the Arab Spring. One of the book’s key insights is the importance of legitimacy for regimes that rule “not nation-states” but rather “Sykes-Picot states”—the colonial heirlooms of Britain and France created in the wake of the two world wars. At times, these states barely seem to acknowledge, let alone respect, their own sovereignty.
When the spirit of revolution hit the Arab world in 2010, the states with external legitimacy—monarchies such as Saudi Arabia, Jordan, Morocco, Kuwait—survived. Regimes that ruled merely by brute force—Egypt, Yemen, Libya—didn’t. The Bashar al-Assad regime in Syria has only held on thanks to the intervention of Iran and Russia, and it is difficult to argue that there is any such thing as “Syria” anymore. What this all proved was that the “stability” of Arab dictatorships, a central conceit of U.S. foreign policy, was in many cases an illusion.
That is the first hard lesson in pan-Arabism from Abrams, now a senior fellow at the Council on Foreign Relations. The second is this: The extremists who filled the power vacuums in Egypt, Libya, Syria, and other countries led Western analysts to believe that there was an “Islamic exceptionalism” at play that demonstrated Islam’s incompatibility with democracy. Abrams effectively debunks this by showing that the real culprit stymieing the spread of liberty in the Middle East was not Islam but pan-Arabism, which stems from secular roots. He notes one study showing that, in the 30 years between 1973 and 2003, “a non-Arab Muslim-majority country was almost 20 times more likely to be ‘electorally competitive’ than an Arab-majority Muslim country.”
Abrams is thus an optimist on the subject of Islam and democracy—which is heartening, considering his experience and expertise. He worked for legendary cold-warrior Senator Henry “Scoop” Jackson and served as an assistant secretary of state for human rights under Ronald Reagan and later as George W. Bush’s deputy national-security adviser for global democracy strategy. Realism and Democracy is about U.S. policy and the Arab world—but it is also about the nature of participatory politics itself. Its theme is: Ideas have consequences. And what sets Abrams’s book apart is its concrete policy recommendations to put flesh on the bones of those ideas, and bring them to life.
The dreary disintegration of the Arab Spring saw Hosni Mubarak’s regime in Egypt replaced by the Muslim Brotherhood, which after a year was displaced in a military coup. Syria’s civil war has seen about 400,000 killed and millions displaced. Into the vacuum stepped numerous Islamist terror groups. The fall of Muammar Qaddafi in Libya has resulted in total state collapse. Yemen’s civil war bleeds on.
Stability in authoritarian states with little or no legitimacy is a fiction. Communist police states were likely to fall, and the longer they took to do so, the longer the opposition sat in a balled-up rage. That, Abrams notes, is precisely what happened in Egypt. Mubarak’s repression gave the Muslim Brotherhood an advantage once the playing field opened up: The group had decades of organizing under its belt, a coherent raison d’être, and a track record of providing health and education services where the state lagged. No other parties or opposition groups had anything resembling this kind of coordination.
Abrams trenchantly concludes from this that “tyranny in the Arab world is dangerous and should itself be viewed as a form of political extremism that is likely to feed other forms.” Yet even this extremism can be tempered by power, he suggests. In a democracy, Islamist parties will have to compromise and moderate or be voted out. In Tunisia, electorally successful Islamists chose the former, and it stands as a rare success story.
Mohamed Morsi’s Muslim Brotherhood took a different path in Egypt, with parlous results. Its government began pulling up the ladder behind it, closing avenues of political resistance and civic participation. Hamas did the same after winning Palestinian elections in 2006. Abrams thinks that the odds of such a bait-and-switch can be reduced. He quotes the academic Stephen R. Grand, who calls for all political parties “to take an oath of allegiance to the state, to respect the outcome of democratic elections, to abide by the rules of the constitution, and to forswear violence.” If they keep their word, they will open up the political space for non-Islamist parties to get in the game. If they don’t—well, let the Egyptian coup stand as a warning.
Abrams, to his credit, does not avoid the Mesopotamian elephant in the room. The Iraq War has become Exhibit A in the dangers of democracy promotion. This is understandable, but it is misguided. The Bush administration made the decision to decapitate the regime of Saddam Hussein based on national-security calculations, mainly the fear of weapons of mass destruction. Once the decapitation had occurred, the administration could hardly have been expected to replace Saddam with another strongman whose depravities would this time be on America’s conscience. Critics of the war reverse the order here and paint a false portrait.
Here is where Abrams’s book stands out: He provides, in the last two chapters, an accounting of the weaknesses in U.S. policy, including mistakes made by the administration he served, and a series of concrete proposals to show that democracy promotion can be effective without the use of force.
One mistake, according to Abrams, is America’s favoring of civil-society groups over political parties. These groups do much good, generally have strong English-language skills, and are less likely to be tied to the government or ancien régime. But those are also strikes against them. Abrams relates a story told by former U.S. diplomat Princeton Lyman about Nelson Mandela. Nigerian activists asked the South African freedom fighter to support an oil embargo against their own government. Mandela declined because, Lyman says, there was as yet no serious, organized political opposition party: “What Mandela was saying to the Nigerian activists is that, in the absence of political movements dedicated not just to democracy but also to governing when the opportunity arises, social, civic, and economic pressures against tyranny will not suffice.” Without properly focused democracy promotion, other tools to punish repressive regimes will be off the table.
Egypt offers a good example of another principle: Backsliding must be punished. The Bush administration’s pressure on Mubarak over his treatment of opposition figures changed regime behavior in 2005. Yet by the end of Bush’s second term, the pressure had let up and Mubarak’s misbehavior continued, with no consequences from either Bush or his successor, Barack Obama, until it was too late.
That, in turn, leads to another of Abrams’s recommendations: “American diplomacy can be effective only when it is clear that the president and secretary of state are behind whatever diplomatic moves or statements an official in Washington or a U.S. ambassador is making.” This is good advice for the current Oval Office occupant and his advisers. President Trump’s supporters advise critics of his dismissive attitude toward human-rights violations to focus on what the president does, not what he says. But Trump’s refusal to take a hard line against Vladimir Putin and his recent praise of Chinese President Xi Jinping’s move to become president for life undermine lower-level officials’ attempts to encourage reform.
There won’t be democracy without democrats. Pro-democracy education, Abrams advises, can teach freedom-seekers to speak the ennobling language of liberty, which is the crucial first step toward building a culture that prizes it. And in the process, we might do some ennobling ourselves.