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What turn-of-the-millennium science is telling us is that human moral judgment is not a pristine rational enterprise, that our moral judgments are driven by a hodgepodge of emotional dispositions, which themselves were shaped by a hodgepodge of evolutionary forces, both biological and cultural. Because of this, it is exceedingly unlikely that there is any rationally coherent normative moral theory that can accommodate our moral intuitions. Moreover, anyone who claims to have such a theory, or even part of one, almost certainly doesn't. Instead, what that person probably has is a moral rationalization.¶ It seems then, that we have somehow crossed the infamous "is"-"ought" divide. How did this happen? Didn't Hume (Hume, 1978) and Moore (Moore, 1966) warn us against trying to derive an "ought" from and "is?" How did we go from descriptive scientific theories concerning moral psychology to skepticism about a whole class of normative moral theories? The answer is that we did not, as Hume and Moore anticipated, attempt to derive an "ought" from and "is." That is, our method has been inductive rather than deductive. We have inferred on the basis of the available evidence that the phenomenon of rationalist deontological philosophy is best explained as a rationalization of evolved emotional intuition (Harman, 1977).¶ Missing the Deontological Point I suspect that rationalist deontologists will remain unmoved by the arguments presented here. Instead, I suspect, they will insist that I have simply misunderstood whatKant and like-minded deontologists are all about. Deontology, they will say, isn't about this intuition or that intuition. It's not defined by its normative differences with consequentialism. Rather, deontology is about taking humanity seriously. Above all else, it's about respect for persons. It's about treating others as fellow rational creatures rather than as mere objects, about acting for reasons rational beings can share. And so on (Korsgaard, 1996a; Korsgaard, 1996b).This is, no doubt, how many deontologists see deontology. But this insider's view, as I've suggested, may be misleading. The problem, more specifically, is that it defines deontology in terms of values that are not distinctively deontological, though they may appear to be from the inside. Consider the following analogy with religion. When one asks a religious person to explain the essence of his religion, one often gets an answer like this: "It's about love, really. It's about looking out for other people, looking beyond oneself. It's about community, being part of something larger than oneself." This sort of answer accurately captures the phenomenology of many people's religion, but it's nevertheless inadequate for distinguishing religion from other things. This is because many, if not most, non-religious people aspire to love deeply, look out for other people, avoid self-absorption, have a sense of a community, and be connected to things larger than themselves. In other words, secular humanists and atheists can assent to most of what many religious people think religion is all about. From a secular humanist's point of view, in contrast, what's distinctive about religion is its commitment to the existence of supernatural entities as well as formal religious institutions and doctrines. And they're right. These things really do distinguish religious from non-religious practices, though they may appear to be secondary to many people operating from within a religious point of view. In the same way, I believe that most of the standard deontological/Kantian self-characterizatons fail to distinguish deontology from other approaches to ethics. (See also Kagan (Kagan, 1997, pp. 70-78.) on the difficulty of defining deontology.) It seems to me that consequentialists, as much as anyone else, have respect for persons, are against treating people as mere objects, wish to act for reasons that rational creatures can share, etc. A consequentialist respects other persons, and refrains from treating them as mere objects, by counting every person's well-being in the decision-making process. Likewise, a consequentialist attempts to act according to reasons that rational creatures can share by acting according to principles that give equal weight to everyone's interests, i.e. that are impartial. This is not to say that consequentialists and deontologists don't differ. They do. It's just that the real differences may not be what deontologists often take them to be. What, then, distinguishes deontology from other kinds of moral thought? A good strategy for answering this question is to start with concrete disagreements between deontologists and others (such as consequentialists) and then work backward in search of deeper principles. This is what I've attempted to do with the trolley and footbridge cases, and other instances in which deontologists and consequentialists disagree. If you ask a deontologically-minded person why it's wrong to push someone in front of speeding trolley in order to save five others, you will getcharacteristically deontological answers. Some will be tautological: "Because it's murder!"Others will be more sophisticated: "The ends don't justify the means." "You have to respect people's rights." But, as we know, these answers don't really explain anything, because if you give the same people (on different occasions) the trolley case or the loop case (See above), they'll make the opposite judgment, even though their initial explanation concerning the footbridge case applies equally well to one or both of these cases. Talk about rights, respect for persons, and reasons we can share are natural attempts to explain, in "cognitive" terms, what we feel when we find ourselves having emotionally driven intuitions that are odds with the cold calculus of consequentialism. Although these explanations are inevitably incomplete, there seems to be "something deeply right" about them because they give voice to powerful moral emotions. But, as with many religious people's accounts of what's essential to religion, they don't really explain what's distinctive about the philosophy in question.

Perry wishes more people were familiar with the concept of “expected value.” That is a statistical way of understanding events of very large magnitude that have a low probability. The large magnitude event could be something good, like winning a lottery ticket. Or it could be something bad, like a nuclear bomb exploding. Because the odds of winning the lottery are so low, the rational thing is to save your money and not buy the ticket. As for a nuclear explosion, by Perry’s lights, the consequences are so grave that the rational thing would be for people in the United States and everywhere to be in a state of peak alarm about their vulnerability, and for political debate to be dominated by discussion of how to reduce the risk. And just how high is the risk? The answer of course is ultimately unknowable. Perry’s point, though, is that it’s a hell of a lot higher than you think. Perry invites his listeners to consider all the various scenarios that might lead to a nuclear event. “Mathematically speaking, you add those all together in one year it is still just a possibility, not a probability,” he reckons. “But then you go out ten, twenty years and each time this possibility repeats itself, and then it starts to become a probability. How much time we have to get those possibility numbers lower, I don’t know. But sooner or later the odds are going to get us, I am afraid.” *** Almost uniquely among living Americans, Bill Perry has actually faced down the prospect of nuclear war before—twice. In the fall of 1962, Bill Perry was 35, father of five young children, living in the Bay Area and serving as director of Sylvania’s Electronic Defense Laboratories—driving his station wagon to recitals in between studying missile trajectories and the radius of nuclear detonations. Where he resided was not then called Silicon Valley, but the exuberance and spirit of creative possibility we now associate with the region was already evident. The giants then were Bill Hewlett and David Packard, men Perry deeply admired and wished to emulate in his own business career. The innovation engine at that time, however, was not consumer technology; it was the government’s appetite for advantage in a mortal struggle against a powerful Soviet foe. Perry was known as a star in the highly complex field of weapons surveillance and interpretation. So it was not a surprise, one bright October day, for Perry to get a call from Albert “Bud” Wheelon, a friend at the Central Intelligence Agency. Wheelon said he wanted Perry in Washington for a consultation. Perry said he’d juggle his schedule and be there the next week. “No,” Wheelon responded. “I need to see you right away.” Perry caught the red-eye from San Francisco, and went straight to the CIA, where he was handed photographs whose meaning was instantly clear to him. They were of Soviet missiles stationed in Cuba. For the next couple weeks, Perry would stay up past midnight each evening poring over the latest reconnaissance photos and help write the analysis that senior officials would present the next morning to President Kennedy. Perry experienced the crisis partly as ordinary citizen, hearing Kennedy on television draw an unambiguous line against Soviet missiles in this hemisphere and promising that any attack would be met with “a full retaliatory response.” But he possessed context, about the capabilities of weapons and the daily state of play in the crisis, that gave him a vantage point superior to that of all but perhaps a few dozen people. “I was part of a small team—six or eight people,” he recounted of those days 54 years earlier. “Half of them technical experts, half of them intelligence analysts, or photo interpreters. It was a minor role but I was seeing all the information coming in. I thought every day when I went back to the hotel it was the last day of my life because I knew exactly what nuclear weapons could do. I knew it was not just a lot of people getting killed. It was the end of civilization and I thought it was about to happen.” It was years later that Perry, like other more senior participants in the crisis, learned how right that appraisal was. Nuclear bombs weren’t only heading toward Cuba on Soviet ships, as Kennedy believed and announced to Americans at the time. Some of them were already there, and local commanders had been given authority to use them if Americans launched a preemptive raid on Cuba, as Kennedy was being urged, goaded even, by Air Force Gen. Curtis LeMay and other military commanders. At the same time, Soviet submarines were armed and one commander had been on the verge of launching them until other officers on the vessel talked him out of it. Either event would have in turn sent U.S. missiles flying. The Cuban Missile Crisis recounting is one of the dramatic peaks in “My Journey on the Nuclear Brink,” the memoir Perry published last fall. It is a book laced with other close calls—like November 9, 1979, when Perry was awakened in the middle of the night by a watch officer at the North American Aerospace and Defense Command (NORAD) reporting that his computers showed 200 Soviet missiles in flight toward the United States. For a frozen moment, Perry thought: This is it—This is how it ends. The watch officer soon set him at ease. It was a computer error, and he was calling to see whether Perry, the technology expert, had any explanation. It took a couple days to discover the low-tech answer: Someone had carelessly left a crisis-simulation training tape in the computer. All was well. But what if this blunder had happened in the middle of a real crisis, with leaders in Washington and Moscow already on high alert? The inescapable conclusion was the same as it was in 1962: The world skirting nuclear Armageddon as much by good luck as by skilled crisis management. Perry is part of a distinct cohort in American history, one that didn’t come home with the large-living ethos of the World War II generation, but took responsibility for cleaning up the world that the war bequeathed. He was a 14-year-old in Butler, Pennsylvania when he heard the news of the Pearl Harbor attack in a friend’s living room, and had the disappointed realization that the war might be over by the time he was old enough to fight in it. That turned out to be true—he was just shy of 18 at war’s end—a fact that places Perry in what demographers have called the “Silent Generation,” too young for one war but already middle-aged by the time college campuses erupted over Vietnam. Like many in his generation, Perry was not so much silent as deeply dutiful, with an understated style that served as a genial, dry-witted exterior to a life in which success was defined by how faithfully one met his responsibilities. Perry said he became aware, first gradually and over time profoundly, of the surreal contradictions of his professional life. His work—first at Sylvania and then at ESL, a highly successful defense contracting firm he co-founded in 1963—was relentlessly logical, analyzing Soviet threats and intentions and coming up with rational responses to deter them. But each rational move was part of a supremely irrational dynamic—“mutually assured destruction”—that placed the threat of massive casualties at the heart of America’s basic strategic thinking. It was the kind of framework in which policymakers could accept that a mere 25 million people dead was good news. Also the kind that in one year alone led the United States to produce 8,000 nuclear bombs. By the end, the Cold War left the planet with about 70,000 bombs (a total that is now down to about 15,500). “I think probably everybody who was involved in nuclear weapons in those days would see the two sides of it,” Perry recalls, “the logic of deterrence and the madness of deterrence, and there was no mistake, I think, that the acronym was MAD.” *** Perry has been at the forefront of a movement that he considers the sane and only alternative, and he has joined forces with other leading Cold Warriors who in another era would likely have derided their vision as naïve. In January 2007, he was a co-author of a remarkable commentary that ran on the op-ed page of the Wall Street Journal. It was signed also by two former secretaries of state, George Schulz and Henry Kissinger and by Sam Nunn, a former chairman of the Senate Armed Services Committee—all leading military hawks and foreign policy realists who came together to argue for something radical: that the goal of U.S. policy should be not merely the reduction and control of atomic arms, it should be the ultimate elimination of all nuclear weapons. This sounded like gauzy utopianism, especially bizarre coming from supremely pragmatic men. But Perry and the others always made clear they were describing a long-term ideal, one that would only be achieved through a series of more incremental steps. The vision was stirring enough that it was endorsed by President Obama in his opening weeks in office, in a March 2009 address in Prague. In retrospect, Obama’s speech may have been the high point for the vision of abolition. “A huge amount of progress was made,” recalled Shultz, now 93. “Now it is going in the other direction.” “We have less danger of an all-out war with Russia,” in Nunn’s view. “But we have more danger of some type of accident, miscalculation, cyber interference, a terrorist group getting a nuclear weapon. It requires a lot more attention than world leaders are giving it.” Perry’s goal now is much more defensive than it was just a few years ago—halting what has become inexorable momentum toward reviving Cold War assumptions about the central role of nukes in national security. More recently he’s added yet another recruit to his cause: California Governor Jerry Brown. Brown, now 78, met Perry a year ago, after deciding that he wanted to devote his remaining time in public service mainly to what he sees as civilization’s two existential issues, climate change and nuclear weapons. Brown said he became fixated on spreading Perry’s message after reading his memoir: He recently gave a copy to President Obama and is trying to bend the ear of others with influence in Washington. If Bill Perry has a gift for understatement, Brown has a gift for the theatrical. In an interview at the governor’s mansion in Sacramento, he wonders why everyone is not paying attention to his new friend and his warnings for mankind. “He is at the brink! At the brink! Not WAS at the brink—IS at the brink,” Brown exclaimed. “But no one else is.” A California governor can have more influence, at least indirectly, than one might think, due to the state’s outsized role in policy debates and the fact that the University of California’s Board of Regents helps manage some of the nation’s top weapons laboratories, which study and design nuclear weapons. Brown, who was a vocal critic in the 1980s of what he called America's "nuclear addiction," reviewed Perry's recent memoir in the New York Review of Books, and said he is determined to help his new friend spread his message. “Everybody is, 'we are not at the brink,' and we have this guy Perry who says we are. It is the thesis that is being ignored." Even if more influential people wake up to Perry’s message—a nuclear event is more likely and will be more terrible than you realize—a hard questions remains: Now what? This is where Perry’s pragmatism comes back into play. The smartest move, he thinks, is to eliminate the riskiest part of the system. If we can’t eliminate all nukes, Perry argues, we could at least eliminate one leg of the so-called nuclear triad, intercontinental ballistic missiles. These are especially prone to an accidental nuclear war, if they are launched by accident or due to miscalculation by a leader operating with only minutes to spare. Nuclear weapons carried by submarines beneath the sea or aboard bomber planes, he argues, are logically more than enough to deter Russia. The problem, he knows, is that logic is not necessarily the prevailing force in political debates. Psychology is, and this seems to be dictating not merely that we deter a Russian military force that is modernizing its weapons but that we have a force that is self-evidently superior to them. It is an argument that strikes Perry as drearily familiar to the old days. Which leads him the conclusion that the only long-term way out is to persuade a younger generation to make a different choice. His granddaughter, Lisa Perry, is precisely in the cohort he needs to reach. At first she had some uncomfortable news for her grandfather: Not many in her generation thought much about the issue. “The more I learned from him about nuclear weapons the more concerned I was that my generation had this massive and dangerous blind spot in our understanding of the world,” she said in an interview. “Nuclear weapons are the biggest public health issue I can think of.” But she has not lost hope that their efforts can make a difference, and today she has put her graduate studies in public health on hold to work full time for the Perry Project as its social media and web manager. “It can be easy to get discouraged about being able to do anything to change our course,” she said. “But the good news is that nuclear weapons are actually something that we as humans can control...but first we need to start the conversation.” It was with her help that Perry went on Reddit to field questions ranging from how his PhD in mathematics prepared him to what young people need to understand. “As a 90s baby I never lived in the Cold War era,” wrote one participant, with the Reddit username BobinForApples. “What is one thing today's generations will never understand about life during the Cold War?” Perry’s answered, as SecDef19: “Because you were born in the 1990s, you did not experience the daily terror of ‘duck and cover’ drills as my children did. Therefore the appropriate fear of nuclear weapons is not part of your heritage, but the danger is just as real now as it was then. It will be up to your generation to develop the policies to deal with the deadly nuclear legacy that is still very much with us.” For the former defense secretary, the task now is to finally—belatedly—prove Einstein wrong. The physicist said in 1946: “The unleashed power of the atom has changed everything save our modes of thinking and we thus drift toward unparalleled catastrophe.” In Perry’s view the only way to avoid it is by directly contemplating catastrophe—and doing so face to face with the world’s largest nuclear power, Russia, as he recently did in a forum in Luxembourg with several like-minded Russians he says are brave enough to speak out about nuclear dangers in the era of Putin. “We could solve it,” he said. “When you’re a prophet of doom, what keeps you going is not just prophesizing doom but saying there are things we do to avoid that doom. That’s where the optimism is.”

There is, in this, a danger. When one conceptualizes white supremacy at the level of ontology, there is little room for one’s imagination to soar and one’s sense of agency is inescapably constrained. The meaning of action is tied fundamentally to what we imagine is possible for us. “The missing thing,” Coates writes, “was related to the plunder of our bodies, the fact that any claim to ourselves, to the hands that secured us, the spine that braced us, and the head that directed us, was contestable.” The body is one of the unifying themes of the book. It resonates well with our American ears because the hallmark of freedom is sovereign control over our bodies. This was the site on which slavery did its most destructive work: controlling the body to enslave the soul. We see the reconstitution of this logic in our present moment—the policing and imprisoning of black men and women. The reality of this colonizes not only the past and the present, but also the future. There can be no affirmative politics when race functions primarily as a wounded attachment—when our bodies are the visible reminders that we live at the arbitrary whim of another. But what of those young men and women in the streets of Ferguson, Chicago, New York, and Charleston—how ought we to read their efforts? We come to understand Coates’s answer to this question in one of the pivotal and tragic moments of the book—the murder of a college friend, Prince Jones, at the hands of the police. As Coates says: “This entire episode took me from fear to a rage that burned in me then, animates me now, and will likely leave me on fire for the rest of my days.” With his soul on fire, all his senses are directed to the pain white supremacy produces, the wounds it creates. This murder should not be read as a function of the actions of a police officer or even the logic of policing blacks in the United States. His account of this strikes a darker chord. What he tells us about the meaning of the death of Prince Jones, what we ought to understand, reveals the operating logic of the “universe”: She [referring to his mother] knew that the galaxy itself could kill me, that all of me could be shattered and all of her legacy spilled upon the curb like bum wine. And no one would be brought to account for this destruction, because my death would not be the fault of any human but the fault of some unfortunate but immutable fact of ‘race,’ imposed upon an innocent country by the inscrutable judgment of invisible gods. The earthquake cannot be subpoenaed. The typhoon will not bend under indictment. They sent the killer of Prince Jones back to his work, because he was not a killer at all. He was a force of nature, the helpless agent of our world’s physical laws. But if we are all just helpless agents of physical laws, the question might emerge again: What does one do? Coates recommends interrogation and struggle. His love for books and his journey to Howard University, “Mecca,” as he calls it, serve as sites where he can question the world around him. But interrogation and struggle to what end? His answer is contained in his incessant preoccupation with natural disasters. We might say, at one time we thought the Gods were angry with us or that they were moving furniture around, thus causing earthquakes. Now we know earthquakes are the result of tectonic shifts. Okay, what do we do with that knowledge? Coates seems to say: Construct an early warning system—don’t misspend your energy trying to stop the earthquake itself. There is a lesson in this: “Perhaps one person can make a change, but not the kind of change that would raise your body to equality with your countrymen…And still you are called to struggle, not because it assures you victory, but because it assures you an honorable and sane life.” One’s response can be honorable because it emerges from a clear-sightedness that leaves one standing upright in the face of the truth of the matter—namely, that your white counterparts will never join you in raising your body to equality. “It is truly horrible,” Coates writes in one of the most disturbing sentences of the book, “to understand yourself as the essential below of your country.” Coates’s sentences are often pitched as frank speech; it is what it is. This produces a kind of sanity, he suggests, releasing one from a preoccupation with the world being other than what it is. Herein lies the danger: Forget telling his son it will be okay. Coates cannot even muster a tentative response to his son; he cannot tell him that it may be okay. “The struggle is really all I have for you,” he tells his son, “because it is the only portion of this world under your control.” What a strange form of control. Black folks may control their place in the battle, but never with the possibility that they, and in turn the country to which they belong, may win. Releasing the book at this moment—given all that is going on with black lives under public assault and black youth in particular attempting to imagine the world anew—seems the oddest thing to do. For all of the channeling of James Baldwin, Coates seems to have forgotten that black folks “can’t afford despair.” As Baldwin went on to say: “I can’t tell my nephew, my niece; you can’t tell the children there is no hope.” The reason why you can’t say this is not because you are living in a dream or selling a fantasy, but because there can be no certain knowledge of the future. Humility, borne out of our lack of knowledge of the future, justifies hope. Much has been made of the comparison between Baldwin and Coates, owing largely to how the book is structured and because of Toni Morrison’s endorsement. But what this connection means seems to escape many commentators. In his 1955 non-fiction book titled Notes of a Native Son, Baldwin reflects on the wounds white supremacy left on his father: “I had discovered the weight of white people in the world. I saw that this had been for my ancestors and now would be for me an awful thing to live with and that the bitterness which had helped to kill my father could also kill me.” Similar to Coates, Baldwin was wounded and so was Baldwin’s father. Yet Baldwin knew all too well that the wounded attachment if held on to would destroy not the plunderers of black life, but the ones who were plundered. “Hatred, which could destroy so much, never failed to destroy the man who hated and this was an immutable law.” Baldwin’s father, as he understood him, was destroyed by hatred. Coates is less like Baldwin in this respect and, perhaps, more like Baldwin’s father. “I am wounded,” says Coates. “I am marked by old codes, which shielded me in one world and then chained me in the next.” The chains reach out to imprison not only his son, but you and I as well. There is a profound sense of disappointment here. Disappointment because given the power of the book, Coates seems unable to linger in the conditions that have given life to the Ta-Neisha Coates that now occupies the public stage. Coates’s own engagement with the world—his very agency—has received social support. Throughout the book he often comments on the rich diversity of black beauty and on the power of love. His father, William Paul Coates, is the founder of Black Classic Press—a press with the explicit focus of revealing the richness of black life. His mother, Cheryl Waters, helped to financially support the family and provided young Coates with direction. And yet he seems to stand at a distance from the condition of possibility suggested by just those examples. One ought not to read these moments above as expressive of the very “Dream” he means to reject. Rather, the point is that black life is at once informed by, but not reducible to, the pain exacted on our bodies by this country. This eludes Coates. The wound is so intense he cannot direct his senses beyond the pain.

To say that we have something (only insofar as we relinquish it) is to say that we come from somewhere (only insofar as we leave that place behind). Genesis is dispersion; somewhere is everywhere and nowhere as the radical dislocation we enact, where we stay and keep on going, before the beginning, before every beginning, and all belonging, in undercommon variance, in arrivance and propulsion, in the flexed load of an evangelical bridge, passed on this surrepetitious vamp, here. If you need some, come on, get some. We come from nothing, which is something misunderstood. It’s not that blackness is not statelessness; it’s just that statelessness is an open set of social lives whose animaterialized exhaustion remains as irreducible chance. Statelessness is our terribly beautiful open secret, the unnatural habitat, and habitus of analytic engines with synthetic capacities. Preservation is conditional branching, undone computation (tuned, forked, tongued), improvisation and, what it forges, digital speculation beyond the analogical or representational or calculative reserve. Critique – for example, the deciphering of the fundamental discursive structures that (de)form Western civilization – is part of its repertoire but it must always be kept in mind that cryptanalytic assertion has a cryptographic condition of possibility. Robinson’s movement within and elucidation of the open secret has been a kind of open secret all its own. For a long time, before its republication in 2000, Black Marxism circulated underground, as a recurrent seismic event on the edge or over the edge of the university, for those of us who valorized being on or over that edge even if we had been relegated to it. There, at least, we could get together and talk about the bomb that had gone off in our heads. Otherwise we carried around its out, dispersive potenza as contraband, buried under the goods that legitimate parties to exchange can value, until we could get it to the black market, where (the) license has no weight, and hand it around out of a suitcase or over a kitchen table or from behind a makeshift counter. Like Pryor (1994) said: ‘I got some shit, too . . . you respect my shit and I’ll respect yours’. Maybe there is some shit in the back of our cars that we don’t even know about. Certainly, this smuggled cargo would be cause for optimism, even against the grain of our constant, clear-eyed vigilance, even against the general interdiction – the intellectual state of emergency – enforced when we emphysemically authorize ourselves to speak of the spirit of the age. That spirit marks the scene in which the etiolation of black studies in the name of critique is carried out by way of our serial flirtation with forgetting our own animation, the collective being that is more precisely understood as being-in-collection insofar as the latter term denotes a debt that is not only incalculable but also subprime. Therefore, by way of the brilliant black light in Frank B. Wilderson’s Afro-pessimistic sound – which materializes, in an investigation of black being, the most rigorous instance of this fatal but necessary proximity to oblivion – I’d like to consider what it is (again and again) to lose a home. This is Wilderson (2007): Slavery is the great leveler of the black subject’s positionality. The black American subject does not generate historical categories of entitlement, sovereignty, and immigration for the record. We are ‘off the map’ with respect to the cartography that charts civil society’s semiotics; we have a past but not a heritage. To the data-generating demands of the Historical Axis, we present a virtual blank, much like that which the Khosian presented to the Anthropological Axis. This places us in a structurally impossible position, one that is outside the articulations of hegemony. However, it also places hegemony in a structurally impossible position because – and this is key – our presence works back on the grammar of hegemony and threatens it with incoherence. If every subject – even the most massacred among them, Indians – is required to have analogs within the nation’s structuring narrative, and the experience of one subject on whom the nation’s order of wealth was built is without analog, then that subject’s presence destabilizes all other analogs (p. 31). Fanon writes, ‘Decolonization, which sets out to change the order of the world, is, obviously, a program of complete disorder’. If we take him at his word, then we must accept that no other body functions in the Imaginary, the Symbolic, or the Real so completely as a repository of complete disorder as the black body. Blackness is the site of absolute dereliction at the level of the Real, for in its magenitizing of bullets the black body functions as the map of gratuitous violence through which civil society is possible – namely, those bodies for which violence is, or can be, contingent. Blackness is the site of absolute dereliction at the level of the Symbolic, for blackness in America generates no categories for the chromosome of history and no data for the categories of immigration or sovereignty. It is an experience without analog – a past without a heritage. Blackness is the site of absolute dereliction at the level of the Imaginary, for ‘whoever says “rape” says Black’ (Fanon), whoever says ‘prison’ says black (Sexton), and whoever says ‘AIDS’ says black – the negro is a ‘phobogenic object’ (Wilderson, 2007, pp. 31–32). In the United States, whoever says ‘subprime debtor’ says black as well, a fact that leads, without too much turning, to the question of what a program of complete disorder would be. In any case, it is difficult to see how, in the impossibility that marks its ‘positionality’, the negation that is always already negated would carry out such a program. In conversation with the equally brilliant Saidiya Hartman, Wilderson takes care to point out that ‘obviously I’m not saying that in this space of negation, which is blackness, there is no life. We have tremendous life. But this life is not analogous to those touchstones of cohesion that hold civil society together’ (Hartman and Wilderson 2003, p. 187). What remains is some exploration of the nature of this antianalog, which is more accurately characterized as an ante-analog, an anticipatory project of celebration that pessimism must always disavow. Of course, celebration of what exceeds any analogy with the antisocial hostilities that comprise civil society is, by definition, antithetical to any agenda seeking integration in a civil society that, in any case, will have never survived such integration. On the other hand, precisely in the ongoing, undercommon instantiation of an already given, already integrated totality, celebration is an antiontological claim, an anteontological affiliation, a social and historical paraontology theorized in performance; it gives criticism breath while also being that to which criticism aspires. If ‘the tremendous life’ we have is nothing other than intermittent respite in what Hartman accurately calls the ravages and brutality of the last centuries, then feeling good about ourselves might very well be obscene. But what if there is something other than the phantasmatic object-home of inclusionist desire – which is rightly seen by Hartman simply to be the extension of those ravages and that brutality – to which we can appeal, to which we have always been appealing, in flight or, deeper still, in movement? Again, the question concerns the open secret, the kinetic refuge, of the ones who consent not to be a single being. The corollary question is how to see it and how to enjoy it. This is a question concerning resistance, which is not only prior to power but also, like power, is everywhere – as the mutual constitution of a double ubiquity that places the question of hegemony somewhere beside the point. The dark, mobile materiality of this ruptural, execonomic generality is a violence in the archive that only shows up by way of violence to the archive. Because I don’t want to kill anybody, because I want us to enjoy ourselves past the point of excess, I am violent in the archive. Because I am a thing seeing things, I am violence in the archive.

The first thing to bear in mind you may wonder why in the beginning of the talk I talked about philosophical anthropology. And many people when they are trying to talk about social change they never think about what a human being is and this is something Fanon pays attention to. Many people want to have closed conceptions of human beings because then human beings can be predicable. In fact, in fanons writing he gave an example. One of the problems is that when he would walk in reason seems to walk out. One problem we have to bear in mind when we try to look at the question of human beings in terms of rigid closed systems is that we often are trying to get as a model of how we work as theorists on issues of social change that are actually based on what we can call law like generalizations. Now what is a law like generalization? It is when you make sure that whatever you say has no contradiction down the line. So if you are to say this much [gestures with hand] the next stage must be consistent with that, and the next stage until you are maximally consistent. Do you get that? But here is the problem – and I can just put it in a nut shell- nobody, nobody in this room would like to date, be married to, or be a best friend with a maximally consistent person. You know what that is. Its hell. And this tells you something, because if somebody where maximally consistent, you know what you would say that person is not reasonable. And we have a person here who does work on Hegel that can point out this insight, that a human being has the ability to evaluate rationality. Now why is that important? Because you see the mistake many of us make is many of us want to push the human being into that maximized law like generalization model. So when we think about our philosophical anthropology, some people, our question about intersectionality for instance, what some people don’t understand is nowhere is there ever a human being who is one identity. People talk about race – do you ever really see a race walking? You see a racialized man or woman, or transman or transwoman. Do you ever see a class walking? Class is embodied in flesh and blood people. And we can go on and on. So if we enrich our philosophical anthropology we begin to notice certain other things. And one of the other things we begin to realize is that we commit a serious problem when we do political work. And the problem is this. The question about Wilderson for instance. There is this discussion going on (and allot of people build it out of my earlier books). I have a category I call, as a metaphor, an antiblack world. You notice an indefinite article – an anti-black world. The reason I say that is because the world is different from an anti-black world. The project of racism is to create a world that would be completely anti-black or anti-woman. Although that is a project, it is not a fait accompli. People don’t seem to understand how recent this phenomenon we are talking about is. A lot of people talk about race they don’t even know the history of how race is connected into theonaturalism. How, for instance, Andalucia and the pushing out of the Moors. The history of how race connected to Christianity was formed. A lot of people don’t understand – from the standpoint of a species whose history is 220,000 years old, what the hell is 500 years? But the one thing that we don’t understand to is we create a false model for how we study those last 500 years. We study the 500 years as if the people who have been dominated have not been fighting and resisting. Had they not been fighting and resisting we wouldn’t be here. And then we come into this next point because you see the problem in the formulation of pessimism and optimism is they are both based on forecasted knowledge, a prior knowledge. But human beings don’t have prior knowledge. And in fact – what in the world are we if we need to have guarantees for us to act. You know what you call such people? Cowards. The fact of the matter is our ancestors – let’s start with enslaved ancestors. The enslaved ancestors who were burning down those plantations, who were finding clever ways to poison their masters, who were organizing meetings for rebellions, none of them had any clue what the future would be 100 years later. Some had good reason to believe that it may take 1000 years. But you know why they fought? Because they knew it wasn’t for them. One of the problems we have in the way we think about political issues is we commit what Fanon and others in the existential tradition would call a form of political immaturity. Political immaturity is saying it is not worth it unless I, me, individually get the payoff. When you are thinking what it is to relate to other generations – remember Fanon said the problem with people in the transition, the pseudo postcolonial bourgeois – is that they miss the point, you fight for liberation for other generations. And that is why Fanon said other generations they must have their mission. But you see some people fought and said no I want my piece of the pie. And that means the biggest enemy becomes the other generations. And that is why the postcolonial pseudo-bourgeoisie they are not a bourgeoisie proper because they do not link to the infrastructural development of the future, it is about themselves. And that’s why, for instance, as they live higher up the hog, as they get their mediating, service oriented, racial mediated wealth, the rest of the populations are in misery. The very fact that in many African countries there are people whose futures have been mortgaged, the fact that in this country the very example of mortgaging the future of all of you is there. What happens to people when they have no future? It now collapses the concept of maturation and places people into perpetual childhood. So one of the political things – and this is where a psychiatrist philosopher is crucial – is to ask ourselves what does it mean to take on adult responsibility. And that means to understand that in all political action it’s not about you. It is what you are doing for a world you may not even be able to understand. Now that becomes tricky, because how do we know this? People have done it before. There were people, for instance, who fought anti-colonial struggles, there are people (and now I am not talking about like thirty or forty years ago, I am talking about the people from day one 17th 18th century all the way through) and we have no idea what we are doing for the 22nd century. And this is where developing political insight comes in. Because we commit the error of forgetting the systems we are talking about are human systems. They are not systems in the way we talk about the laws of physics. A human system can only exist by human actions maintaining them. Which means every human system is incomplete. Every human being is by definition incomplete. Which means you can go this way or you can go another way. The system isn’t actually closed. How do we know it? The reason we are seeing all of this brutality in the world today is because the systems are breaking down. If the systems were working they wouldn’t have to worry. You know how have an effective system? You make people mentally be their own prisoners. IF the system were really working, you wouldn’t have to have the police because you all would do it for them. It’s the very fact that the system is breaking down that we are seeing heightened brutality. The problem with heightened brutality is that it is not sustainable. There are studies, for instance, if you look at a paper called Mr. Y, done by the military advisors in this country. They argue that using military force to maintain the United States is not sustainable. They argue what is sustainable is for a nation to learn to be good citizens in the world. Which means it has to build up its infrastructure, education, human relations, it has to deal with the ecology, the environment, all of those things. And this is what many people are learning all over the world. And so one of the things we have to bear in mind then is this: when we begin to engage in these struggles we have to understand how we have to think differently. If we look at neoconservativism, they want to take us back to the 17th century, Hobbseianism, its all about order, control. That is what you are seeing in the streets right now, here in this country, and Latin America, and some parts of Europe. And then you have neoliberalism. Neoliberalism wants to have free markets and at the same time it wants to create a unique form of vulnerability which it places through 19th century thought which is that you are supposed to look at yourself as an individual. Neoliberals say that they don’t believe in group rights, only individual rights. Now you know what an individual is when you are dealing with a government or society. An individual is simply a vulnerable being. So in effect, that conception of rights is to ensure you have a population that’s completely vulnerable to the domination of the system. Now the problem is, many people when they respond to neo-conservatism and neo-liberalism, attack it through being anti-globalism. Because we’ve got neo-conservative globalism and neo-liberal globalism. So what they do is abrogate, they give up the concrete levels in which people can build alternative ways of imagining a global future. Now, here’s the thing. On neo-liberalism, the idea is to make you forget the 20th century. Why? The 20th century was the age of revolution. They want you to think 19th, 18th, and 17th century. And then they tell you every revolutionary effort in the 20th century failed and this is where Fanon is interesting. Because you see, he brings an insight that you need to understand the concept of failure differently. And I’ll give an example. A lot of things that I’ve worked with, in groups that I’ve worked with, communities where we work together, every time we have a project, we always had people and somebody who says “don’t do that.” And you’ll say “why?” And they’ll say “we tried.” You see where I’m getting at? If I couldn’t do it, nobody could do it. But what they don’t understand is that their failure already started setting the conditions for a new kind of relation. When I was president of the Caribbean Philosophical Association I went and lectured in nearly every country in which there were slaves, to deal, in 2008, with the end of the British Atlantic slave trade. If you hear the popular histories, you’ll hear that “slave revolts failed.” The crappy history you have is that one day a group of people in England, in France, in Denmark said “you know, slavery is a really bad thing, let us get rid of it.” Now that is not the actual history, everywhere I went and looked at the archives and local history, every single instance, there was a slave revolt. Every single one --- the Sharpe Rebellion in Jamaica is what led to the question of getting rid of the Atlantic Slave Trade. If you look at Denmark, if you look among the Dutch, the Dutch, had a much larger slave trade, the British were pirates, they took it over. And when you go look at history, and I’ll give you an example, a lot of y’all don’t know that Denmark had a big, had a whole colonial structure. And if you go to Copenhagen, you’ll see a statute of a man, I forget his name, a governor, and it says “freed the slaves.” Okay? Now, you go to St. Martin you’ll get the real story, here is the story. It always boggles my mind how slavery functions, they had the fort, and they had enslaved people bring the supplies and everything into the fort. It also boggles my mind that slave masters had slaves cook for them, but anyways, the people would come in and deliver supplies and one morning the governor woke up and outside the entire fort, it was surrounded by black enslaved people wearing white. You better watch out when you see some Africans wearing white. They have machetes, pitchforks and they just looked at the fort. The governor looked out and said “disband,” and they just stood there. And then he said, he ordered to aim the guns to them, “disband or we’ll shoot.” And the people stood, and then he ordered “fire.” And none of the guns worked, because every day they came in they replaced gunpowder with sand. And then you know what he said? “Well now you’re all free.” The thing about Danes is that they were all Lutherans, their law was the governor’s law, and if he says you’re free, you’re free. And now, those islands were not of use to the Danes and there was a period of equality, rights, and they sold the islets to the United States that implemented segregation and all kinds of other things, but the point is different. The point is you have one history where it says he freed the slaves, and then the actual history where the slaves freed themselves. Nowhere in history, this is the Fanonian point, nowhere in history, any kind of domination, not just enslaved communities, we’re talking about structural violence of many kinds, and people talk about, for instance: Who created the women’s movement? The answer is women, and men, but mostly women, who cared about their liberation. We are able to look at the world different because women fought. It’s not that they sat down and said “treat me better.” They got up and went out in the streets. Every instance of anyone doing political activism really works. The error people make is that they think just because in the past, there were, so called “overcome” rebellions, they don’t realize that rebellions change the conditions. And thus there is no such thing, this is why I brought in the Fanon example, he didn’t fight with the presumption he would win, he fought because he had to. And why did he have to? It wasn’t in the sense of self-defense, he had to precisely because he knew it was the right thing to do. Real political work is about doing what is necessary when an understanding because it should be done and it’s not about you. If we come to the concrete levels, you need to argue, look closely at what you’re doing, if it’s going to be action beyond you, you know what you call that? If it’s only about you, it’s not only narcissism and selfishness, and even hate, but if it’s about those that transcend you, if you are not the reason, but because it’s right and for subsequent generations, what do you call if when you really do something for others? The word, and it connects to the revolutionary force that you see in the entirety of the black radical tradition, is a word that may sound corny, but it’s true, the word is love. There’s a difference in political work connected to love because its purpose is to make grow, and to make happen that which is absent. Love and power, in that sense, works.

While the ontological state of Black social death is an important concept for resistance scholars to understand, the typical advocacy of complete societal pessimism in response to that ontological arrangement is incomplete at best. Many in Afro-Pessimism use the basis of social death to determine the question of Black political orientation in a way that is problematic. This is not to say that social death theorization is not important, but that there is a vital distinction that needs to be made both in terms of its application toward traditional political processes and ensembles of Blackness. Frank Wilderson, Associated Professor of African-American Studies and Drama at the University of California-Irvine, is quite possibly the leading Afro-Pessimist scholar. He concludes his discussion of social death by advocating for one to “embrace its disorder, its incoherence, and allow oneself to be elabo­rated by it if, indeed, ones politics are to be underwritten by a desire to take down this country” (2007). In summary, his application of social death is used as a reason why Black life cannot be oriented at any level of meaningful production within society. While Wilderson is correct that the material labor and symbolic currency born out of Blackness will always be consumed by whiteness, his conclusion is paradoxical at some level. If humanism is the grammar by which civil society determines the register of subjectivity, why then is that matrix appropriate in determining the state of Black life, if Black life is inherently the position of what is incommunicable? If social death theory’s application is one that concludes an impossibility of meaningful Black productivity, then Afro-Pessimism becomes nothing but a body of literature that echoes the same sentiments as those who would understand Black life as a state of nothingness in plain racist terms. Understanding Black ontology should definitely involve an understanding of the social deadness of the Black subject in relation to society, but it should not be used as the standard to measure internal liberation. The distinction here is important because too often Afro-Pessimists scholars like Wilderson conceptualize Black resistance as a singular orientation toward society. Indeed their work is important to understand the manner in which society operates upon Black subjects, but it is insufficient to describe an ethic that allows for the pursuit of meaning within Blackness itself. In this regard, scholars should understand Black resistance as occurring on two different levels: the ontological and the intra-ontological. The distinction being made is between the ontological state of Blackness as determined outside of humanity proper versus the life within the ontological state of Blackness as understood through social death. If social death is the state of the Black, what then speaks to the state of the Black amongst Blacks? It would be a mistake on the part of any scholar to concern themselves with one and not the other. This paper uses the term intra-ontology in reference to the varying ontologies within social death. This is the Black among Blacks. These are those spaces within Blackness that only the Black can ever understand or occupy. Though they exist outside of the production of the human (within the category of social death), there are Black affektual politics that have been with the slave since the ship. These are the emotional and spiritual ontologies within Blackness that connected slaves of different lands, languages, and religions into one community. Black intra-ontology can never achieve the plane of recognition because it can only be understood within Blackness, which by definition is the position of social death, but those affektual spirits and emotions ought not be neglected. Social death should guide Black resistance strategy in understanding the position of the Black within civil society, but it speaks not to the arrangement of Black intra-ontological questions. If this is measured by social death it only produces a cycle of endless internal psychic violence because the Black would only be met with the discovery of a violent reality of its existence through affirmations of social death. Intra-ontological resistance must not be a question of how the world understands Blackness, because the position of the slave is one that cannot be articulated in terms of hegemony. If it is so that the Black inherently experiences the world through a different ontological register, then measures of Black liberation cannot be articulated through the lens of humanist grammars. Jared Sexton, the Director of the African-American Studies School of Humanities at the University of California-Irvine, is another leading scholar in Afro-pessimism. He explains that there is indeed social life that exists within social death. There are many that condemn the invocation of social death as overly pessimistic, but “this acceptance or affirmation is active; it is a willing or willingness, in other words, to pay whatever social costs accrue to being black, to inhabiting blackness, to living a black social life under the shadow of social death. This is not an accommodation to the dictates of the antiblack world” (Sexton 2010). This is to say that it is indeed possible to both affirm the state of social death and actively pursue the social life that exists within Blackness. This is not the typical critique of social death, but rather it is a necessary specification of the social life within social death that Sexton speaks. Social death is adequate in terms of measuring the ontological state of the human versus the Black, but a different rubric is required in mapping social life within social death. One such rubric is fleshly politics. This concepts derives from the plantation in regards to the manner in which slaves would temporarily reclaim and weaponize their bodies as a site of political protest against their state of enslavement. Fleshy politics is an example of an appropriate rubric for measuring liberation within intra-ontological politics because these bodily resistances surely did not change the physical state of enslavement, but it did immeasurable good for the mental and psychological state of those in the master’s cage. Alternate orientations to the flesh “excavates the social (after)life of these categories: it represents racializing assemblages of subjection that can never annihilate the lines of flight, freedom dreams, practices of liberation, and possibilities of other worlds” (Weheliye 2014). In contrast to Wilderson’s line of flight away from bodily coding, it is important to reclaim the atrocity of the flesh as a means of agency within capture through the remapping of whiteness. The enslaved female flesh was the site of great violence, but there is a false “dichotomy between the material/political and the personal, in large measure [because even though the] body, so deeply personal, is also a political arena. Their work has demonstrated the extent to which women's bodies were unique sites of domination under slavery” (Camp 2002). Though the body was in the possession of the slave master, the enslaved found personal meaning in its temporary recapture in fleshliness which satisfied an innate desire for selfhood. The illegality of using the flesh as a site of pleasure became a political counter-investment. While conventional Afro-Pessimist would argue that this personal orientation does nothing in terms of the ontological position within Blackness, the personal victory the enslaved experiences as a result of that temporary reclamation is meaningful in both psychological and emotional terms. This is important because if there is never room for personal liberation, and Black resistance is only understood in terms of material questions within civil society, it reproduces the same sacrificial logic that social death explains. Resistance strategies that only take meaning in notions of full agency are recipes for failure because these only measure Black liberation on the register of civil society which can never grapple with the inherent confine in which Black life exists. To take the conclusion of the previous section and use the call from intra-ontological liberation as a justification for the ontological state of Blackness would be a violent imposition of whiteness. The arrangement of Blackness as an ontological question versus Blackness as an intra-ontological question is a criminalization of Black thought. The two are not mutually exclusive, nor should one be viewed as a sufficient substitute for the other. Instead, they are complimentary; they are necessary components to the assemblage of Black resistance strategy. While the importance of a conception of personal liberation is addressed above, the ontological position of Blackness within civil society is a dilemma that must be also be carefully addressed. There is a needed balance between the two because one measure can easily violate the other. At no point should the ontological state of Blackness within social death must not be affirmed in pursuit of intra-ontological freedom. This topic is one of great complexity. If the Black isolates a subject position that is not a subject position, is political liberation possible? This is where the theorization of social death should primarily direct Black political strategy as understood through the lens of conventional Afro-Pessimism.

“To the university I’ll steal, and there I’ll steal,” to borrow from Pistol at the end of Henry V, as he would surely borrow from us. This is the only possible relationship to the American university today. This may be true of universities everywhere. It may have to be true of the university in general. But certainly, this much is true in the United States: it cannot be denied that the university is a place of refuge, and it cannot be accepted that the university is a place of enlightenment. In the face of these conditions one can only sneak into the university and steal what one can. To abuse its hospitality, to spite its mission, to join its refugee colony, its gypsy encampment, to be in but not of – this is the path of the subversive intellectual in the modern university. Worry about the university. This is the injunction today in the United States, one with a long history. Call for its restoration like Harold Bloom or Stanley Fish or Gerald Graff. Call for its reform like Derek Bok or Bill Readings or Cary Nelson. Call out to it as it calls to you. But for the subversive intellectual, all of this goes on upstairs, in polite company, among the rational men. After all, the subversive intellectual came under false pretenses, with bad documents, out of love. Her labor is as necessary as it is unwelcome. The university needs what she bears but cannot bear what she brings. And on top of all that, she disappears. She disappears into the underground, the downlow lowdown maroon community of the university, into the undercommons of enlightenment, where the work gets done, where the work gets subverted, where the revolution is still black, still strong. What is that work and what is its social capacity for both reproducing the university and producing fugitivity? If one were to say teaching, one would be performing the work of the university. Teaching is merely a profession and an operation of that onto-/auto-encyclopedic circle of the state” that Jacques Derrida calls the Universitas. But it is useful to invoke this operation to glimpse the hole in the fence where labor enters, to glimpse its hiring hall, its night quarters. The university needs teaching labor, despite itself, or as itself, self-identical with and thereby erased by it. It is not teaching that holds this social capacity, but something that produces the not visible other side of teaching, a thinking through the skin of teaching toward a collective orientation to the knowledge object as future project, and a commitment to what we want to call the prophetic organization. But it is teaching that brings us in. Before there are grants, research, conferences, books, and journals there is the experience of being taught and of teaching. Before the research post with no teaching, before the graduate students to mark the exams, before the string of sabbaticals, before the permanent reduction in teaching load, the appointment to run the Center, the consignment of pedagogy to a discipline called education, before the course designed to be a new book, teaching happened. The moment of teaching for food is therefore often mistakenly taken to be a stage, as if eventually one should not teach for food. If the stage persists, there is a social pathology in the university. But if the teaching is successfully passed on, the stage is surpassed, and teaching is consigned to those who are known to remain in the stage, the sociopathological labor of the university. Kant interestingly calls such a stage “self-incurred minority.” He tries to contrast it with having the “determination and courage to use one’s intelligence without being guided by another.” “Have the courage to use your own intelligence.” But what would it mean if teaching or rather what we might call “the beyond of teaching” is precisely what one is asked to get beyond, to stop taking sustenance? And what of those minorities who refuse, the tribe of moles who will not come back from beyond (that which is beyond “the beyond of teaching”), as if they will not be subjects, as if they want to think as objects, as minority? Certainly, the perfect subjects of communication, those successfully beyond teaching, will see them as waste. But their collective labor will always call into question who truly is taking the orders of the enlightenment. The waste lives for those moments beyond teaching when you give away the unexpected beautiful phrase – unexpected, no one has asked, beautiful, it will never come back. Is being the biopower of the enlightenment truly better than this? Perhaps the biopower of the enlightenment knows this, or perhaps it is just reacting to the objecthood of this labor as it must. But even as it depends on these moles, these refugees, it will call them uncollegial, impractical, naive, unprofessional. And one may be given one last chance to be pragmatic – why steal when one can have it all, they will ask. But if one hides from this interpellation, neither agrees nor disagrees but goes with hands full into the underground of the university, into the Undercommons – this will be regarded as theft, as a criminal act. And it is at the same time, the only possible act. In that undercommons of the university one can see that it is not a matter of teaching versus research or even the beyond of teaching versus the individualisation of research. To enter this space is to inhabit the ruptural and enraptured disclosure of the commons that fugitive enlightenment enacts, the criminal, matricidal, queer, in the cistern, on the stroll of the stolen life, the life stolen by enlightenment and stolen back, where the commons give refuge, where the refuge gives commons. What the beyond of teaching is really about is not finishing oneself, not passing, not completing; it’s about allowing subjectivity to be unlawfully overcome by others, a radical passion and passivity such that one becomes unfit for subjection, because one does not possess the kind of agency that can hold the regulatory forces of subjecthood, and one cannot initiate the auto-interpellative torque that biopower subjection requires and rewards. It is not so much the teaching as it is the prophecy in the organization of the act of teaching. The prophecy that predicts its own organization and has therefore passed, as commons, and the prophecy that exceeds its own organization and therefore as yet can only be organized. Against the prophetic organization of the undercommons is arrayed its own deadening labor for the university, and beyond that, the negligence of professionalization, and the professionalization of the critical academic. The undercommons is therefore always an unsafe neighborhood.

While the ABB would soon be absorbed by the CPUSA, as of 1919 its program still represented the blend of black nationalism, anticolonialism, and economic radicalism that marks the classic black synthesis of the third path. Note that the African Blood Brotherhood’s program and synthetic ideology predates Du Bois and other mid-twentieth-century black radical leftists. They, along with Hubert Harrison and the Liberty League, were early pioneers in developing the third path. Like the Liberty League, which in its “Declaration of Princi- ples” called for “the securing of absolutely equal rights” (Perry 2009, 291), the ABB emphasized at the beginning of its program the need for both black liberation (“a liberated race”) and full equality (“absolute race equality”). In Briggs’s view black libera- tion was the only feasible alternative, especially at a time when the social democrats of the Socialist Party had abandoned their work on race and had a leadership who swore to maintain, in their own words, “white supremacy.” As Solomon argues, Briggs was also deeply committed to the principle of self-determination for peoples of African descent. Like Garvey, he believed that Africans, both in Africa and throughout the diaspora, had not only the right but the duty to govern themselves (Solomon 1997). Briggs was suspicious of the Socialist Party and more generally of the social democracy of the Second International; as late as 1921 the ABB still was promoting a program that had elements of black national- ism even as the organization’s leadership was moving closer to the representatives of Lenin’s revolution within the United States (Solomon 1997). Eventually Briggs joined the Communist Party for reasons similar to Haywood’s. As Briggs himself put it: “I en- tered simply because the party had a program, even [though] not written, . . . on the Negro field; because of the solution of the na- tional question in the Soviet Union, and because I was confident that the American party in time would take its lead on that ques- tion from its Soviet party, which is what it eventually did” (Dawson 2001, 182). A significant aspect of Briggs’s comment, one borne out by the historical record, is his lack of confidence in the Ameri- can communists. He knew well that American socialism, whether of the Socialist Party type or the Leninist variety, was at best skep- tical of how important the struggle for racial justice, let alone black liberation, would be to radical organizing in the United States. Briggs was counting on the international communist movement to force the American party to treat blacks’ struggle as one with revo- lutionary potential in its own right. As noted earlier, during this period some of the most savage pogroms ever launched were directed against black communities. Many blacks were extraordinarily angry—including black veter- ans of World War I—and were at a point at which militant action seemed preferable to doing nothing. Blacks were also looking for an organizational base and allies. The only two games in town for black radicals (besides the small ABB) were the CPUSA and Gar- vey’s UNIA. As would happen to a later generation, many of these early and critical black Marxists eventually would be pushed out of the organizational mainstream of the left precisely because of their views on black liberation and the national question, and spe- cifically their belief that the black struggle represented a revolu- tionary effort in its own right. Richard Rorty argued, “The Communist Party of the United States (CPUSA) was of very little importance to the political life of our country” (Rorty 1998, 44). That is certainly a plausible argument for American politics as a whole from 1930 on, but it does not capture the reality of black politics between the 1920s and 1940—until the CPUSA decided to sacrifice much of its good- will among African Americans and its hard-won gains to the Soviet- mandated false unity that emphasized working with racist and liberal whites who were offended by the occasionally racially militant practices of the CPUSA. Even though black leftists were increasingly at odds with the party over its stance toward orga- nizing blacks, the CPUSA remained the main organizational form that black leftists worked within during this period. While not the only Marxist influence on black radicalism, the CPUSA did have hegemonic organizational influence on the black left before World War II. The third path was not followed, and the Socialist Party (and social democrats more generally) provided little real competition for black support even during the early years of the CPUSA. Communist Party work among blacks had stagnated during the 1920s due to the CPUSA’s white-dominated leadership crack-ing down on organizing aimed at blacks. The dominant faction of the white leadership furiously opposed special status for Afri- can Americans or work among African Americans. Many in the leadership did not see the black movement as central to leftist or- ganizing, let alone as a revolutionary movement in its own right. Black cadres argued about the best way to raise the prominence of work among blacks, with Haywood and Briggs embracing a “black nation” thesis, and others, including Haywood’s brother, disagreeing. In 1922 black communists were attacked by the head of the Workers Party (the CPUSA’s precursor) for protesting separate seating for black delegates to a Farmer-Labor Party con- vention in Chicago. Indeed, some Virginia blacks were purged for lacking the “qualifications” to be communists—they were consid- ered too petty bourgeois, since they kept raising the question of racism within working-class organizations and meetings, and there- fore were guilty of dividing the working class. It was even rec- ommended that the entire “colored branch be dismissed” (Harris 1989, 148). As early as 1924, just as the party was taking its mod- ern form, the main leadership faction refused to publicly demand that its members support full equality for blacks within the labor movement (Solomon 1997). Further, the Harlem branch was con- sidered to be a den of nationalists—much the way the Socialist Party’s Harlem branch had been viewed by its leadership. Not surprisingly, given this view of the black struggle and suspicion of at least some of the leading black cadres, black cadres’ advice about how to organize the American Negro Labor Congress—particularly their advice that whites should not play the leading organizing role—was ignored. The result was the disaster that the black cad- res had predicted, because blacks were suspicious toward whites after the great wave of antiblack pogroms that occurred between 1919 and 1923 and were understandably reluctant to join an orga- nization dominated by whites. Finally, the dominant faction, led by Jay Lovestone, rejected organizing in the South—where the great majority of African Americans still resided—labeling the region as backward and not fit for organizing (Solomon 1997). Before 1923 there was a seemingly viable and vibrant nationalist alternative in the Universal Negro Improvement Association, but after the decline of the Garvey movement organizational options for black radicals were limited throughout much of the 1920s. By the late 1920s, however, black cadres in Moscow working with the Communist International, the Comintern, were able to win a mandate for a resolution on a black nation. Ironically, the first version of the resolution, in 1928, was close to the formula- tions of many black-power-era groups such as the Black Panthers, as well as individuals such as Malcolm X. It called for support for self-determination for African Americans—the ability for blacks to be able to collectively determine their political relationship to the United States–without necessarily arguing for the existence of a black nation. The 1932 resolution was much closer to the posi- tion eventually embraced by hard-core black nationalists such as the Nation of Islam and black-power-era groups such as the Republic of New Africa, which specified a black nation based in the South.

Over at The Atlantic, Ta-Nehisi Coates has been exploring the intersection of race and public policy, with a focus on white supremacy as a driving force in political decisions at all levels of government. This has led him to two conclusions: First, that anti-black racism as we understand it is a creation of explicit policy choices—the decision to exclude, marginalize, and stigmatize Africans and their descendants has as much to do with racial prejudice as does any intrinsic tribalism. And second, that it's possible to dismantle this prejudice using public policy. Here is Coates in his own words: Last night I had the luxury of sitting and talking with the brilliant historian Barbara Fields. One point she makes that very few Americans understand is that racism is a creation. You read Edmund Morgan’s work and actually see racism being inscribed in the law and the country changing as a result. If we accept that racism is a creation, then we must then accept that it can be destroyed. And if we accept that it can be destroyed, we must then accept that it can be destroyed by us and that it likely must be destroyed by methods kin to creation. Racism was created by policy. It will likely only be ultimately destroyed by policy. Over at his blog, Andrew Sullivan offers a reply: I don’t believe the law created racism any more than it can create lust or greed or envy or hatred. It can encourage or mitigate these profound aspects of human psychology – it can create racist structures as in the Jim Crow South or Greater Israel. But it can no more end these things that it can create them. A complementary strategy is finding ways for the targets of such hatred to become inured to them, to let the slurs sting less until they sting not at all. Not easy. But a more manageable goal than TNC’s utopianism. I can appreciate the point Sullivan is making, but I'm not sure it's relevant to Coates' argument. It is absolutely true that "Group loyalty is deep in our DNA," as Sullivan writes. And if you define racism as an overly aggressive form of group loyalty—basically just prejudice—then Sullivan is right to throw water on the idea that the law can "create racism any more than it can create lust or greed or envy or hatred." But Coates is making a more precise claim: That there's nothing natural about the black/white divide that has defined American history. White Europeans had contact with black Africans well before the trans-Atlantic slave trade without the emergence of an anti-black racism. It took particular choices made by particular people—in this case, plantation owners in colonial Virginia—to make black skin a stigma, to make the "one drop rule" a defining feature of American life for more than a hundred years. By enslaving African indentured servants and allowing their white counterparts a chance for upward mobility, colonial landowners began the process that would make white supremacy the ideology of America. The position of slavery generated a stigma that then justified continued enslavement—blacks are lowly, therefore we must keep them as slaves. Slavery (and later, Jim Crow) wasn't built to reflect racism as much as it was built in tandem with it. And later policy, in the late 19th and 20th centuries, further entrenched white supremacist attitudes. Block black people from owning homes, and they're forced to reside in crowded slums. Onlookers then use the reality of slums to deny homeownership to blacks, under the view that they're unfit for suburbs. In other words, create a prohibition preventing a marginalized group from engaging in socially sanctioned behavior—owning a home, getting married—and then blame them for the adverse consequences. Indeed, in arguing for gay marriage and responding to conservative critics, Sullivan has taken note of this exact dynamic. Here he is twelve years ago, in a column for The New Republic that builds on earlier ideas: Gay men--not because they're gay but because they are men in an all-male subculture--are almost certainly more sexually active with more partners than most straight men. (Straight men would be far more promiscuous, I think, if they could get away with it the way gay guys can.) Many gay men value this sexual freedom more than the stresses and strains of monogamous marriage (and I don't blame them). But this is not true of all gay men. Many actually yearn for social stability, for anchors for their relationships, for the family support and financial security that come with marriage. To deny this is surely to engage in the "soft bigotry of low expectations." They may be a minority at the moment. But with legal marriage, their numbers would surely grow. And they would function as emblems in gay culture of a sexual life linked to stability and love. [Emphasis added] What else is this but a variation on Coates' core argument, that society can create stigmas by using law to force particular kinds of behavior? Insofar as gay men were viewed as unusually promiscuous, it almost certainly had something to do with the fact that society refused to recognize their humanity and sanction their relationships. The absence of any institution to mediate love and desire encouraged behavior that led this same culture to say "these people are too degenerate to participate in this institution." If the prohibition against gay marriage helped create an anti-gay stigma, then lifting it—as we've seen over the last decade—has helped destroy it. There's no reason racism can't work the same way.

As a result, there is a growing realization that, without tangible alternativity, critical theory risks losing its normative impetus and its ethical and emancipatory commitment, potentially becoming a post-epistemological vocation without politics. Critical knowledge without a dose of alternativity may examine the causes and consequences of subject matters but could fall short of reaching out to the wider policy community and the affected subjects where power relations reside, thus missing the opportunity to transform the structural, discursive, and performative practices that reproduce violence, inequality, and injustice on human and nonhuman ecology. To bridge this epistemological gap, the analysis in the second part of this article examined how alternativity features in peace and conflict studies, a disciplinary field known for adding normative, empirical, and practical substance to critical IR debates. The analysis offered a conceptual scoping of three modes of critique and alternativity in peace and conflict studies. The three modes of critique showed that a conjunction between criticality and alternativity is possible and that it is necessary to renew the practical and emancipatory potential of critical theory in IR. The three modes of alternativity in peace and conflict studies expose a spectrum of different critiques, ranging from those perspectives that disengage completely from conceptual and empirical alternatives, to more pragmatic and prescriptive approaches.

Critique-without-alternative represents one strand, which tends to avoid offering normative and practical alternatives to their critical reflections aimed at maintaining the conservative and radical impetus of critical theory and dissociating from problem-solving and policy-relevant methods of inquiry. This mode of critique is committed to revealing the weaknesses of peacebuilding interventions but refuses to offer any emancipatory and practical alternative on how to build sustainable peace after violent conflict. If the end goal of critical perspectives is achieving emancipation, then critique should not only be directed toward problematizing dominant discourses, practices, and policies but also needs to envisage political and practical alternatives rooted in ideational and material elements. In turn, the lack of an explicit emancipatory agenda limits their social and political impact and unintentionally validates the existing order. In response to this challenge, a new mode of critique has emerged, namely, critique-as-alternative, which exemplifies the optimal approach. Proponents of critique-as-alternative have remained committee to critical analysis, but most importantly, they have taken up the challenge of offering emancipatory knowledge that has practical relevance for vulnerable societies in global politics. Their main flaw, however, has been their inability to elaborate sufficiently their practical and emancipatory alternatives—a flaw that has opened up space for epistemic contestation and policy co-optation. Finally, the third mode of critique—critique-with-alternative—which is embedded in a positivist, problem-solving, and policy-driven logic of inquiry, offers alternatives that seek either to verify existing knowledge and the existing interventionary order or to reject other critical alternatives.

While private property is treated as a personal right and has been recognized, in different forms, for millennia, intellectual property is a much more recent legal creation, whose existence is justified by a set of arguments that ultimately hinge on the balance. This is not the balance with empty pans held by Lady Justice, but a balance whose contents are dictated by the specific goals and justification of the law: balancing the interests of inventors with those of the public. Far from being construed metaphorically, this is a balance that ought to weigh evidence to find a just equilibrium. Should we think of it as a kind of instrument? And, if so, can it perform the balancing act that the law expects and requires?

The works of authors and inventors are of an unusual nature. The economists call them “public goods,” goods that are expensive to make but easy to copy, making them unlikely to be produced under normal market conditions unless special measures are introduced to make their copying illegal. Intellectual property law provides that. At the same time, while inventions and works of authorship are easy to appropriate, their appropriation, unlike theft, does not produce a loss of the original. Consequently, the law does not give inventors the same rights in their innovations that landowners have in their estates. As indicated by the limited length of patent and copyright protection, authors and inventors “own” their work in a significantly qualified sense, and to an extent that is limited by the opposing rights of the public. In Thomas Jefferson’s words: “[I]nventions […] cannot in nature be a subject of property. Society may give an exclusive right to the profits arising from them as an encouragement to men to pursue ideas which may produce utility. But this may, or may not be done, according to the will and convenience of the society, without claim or complaint from any body.”

In even stronger terms, Raymond Williams challenged the class-based arrogance of scriptocentrism, pointing to the “error” and “delusion” of “highly educated” people who are “so driven in on their reading” that “they fail to notice that there are other forms of skilled, intelligent, creative activity” such as “theatre” and “active politics.” This error “resembles that of the narrow reformer who supposes that farm labourers and village craftsmen were once uneducated, merely because they could not read.” He argued that “the contempt” for performance and practical activity, “which is always latent in the highly literate, is a mark of the observer’s limits, not those of the activities themselves” ([1958] 1983:309). Williams critiqued scholars for limiting their sources to written materials; I agree with Burke that scholarship is so skewed toward texts that even when researchers do attend to extralinguistic human action and embodied events they construe them as texts to be read. According to de Certeau, this scriptocentrism is a hallmark of Western imperialism. Posted above the gates of modernity, this sign: “‘Here only what is written is understood.’ Such is the internal law of that which has constituted itself as ‘Western’ [and ‘white’]” (1984:161). Only middle-class academics could blithely assume that all the world is a text because reading and writing are central to their everyday lives and occupational security. For many people throughout the world, however, particularly subaltern groups, texts are often inaccessible, or threatening, charged with the regulatory powers of the state. More often than not, subordinate people experience texts and the bureaucracy of literacy as instruments of control and displacement, e.g., green cards, passports, arrest warrants, deportation orders—what de Certeau calls “intextuation”: “Every power, including the power of law, is written Ž rst of all on the backs of its subjects” (1984:140). Among the most oppressed people in the United States today are the “undocumented” immigrants, the so-called “illegal aliens,” known in the vernacular as the people “sin papeles,” the people without papers, indocumentado/as. They are illegal because they are not legible, they trouble “the writing machine of the law” (de Certeau 1984:141). The hegemony of textualism needs to be exposed and undermined. Transcription is not a transparent or politically innocent model for conceptualizing or engaging the world. The root metaphor of the text underpins the supremacy of Western knowledge systems by erasing the vast realm of human knowledge and meaningful action that is unlettered, “a history of the tacit and the habitual” (Jackson 2000:29). In their multivolume historical ethnography of colonialism/ evangelism in South Africa, John and Jean Comaroff pay careful attention to the way Tswana people argued with their white interlocutors “both verbally and nonverbally” (1997:47; see also 1991). They excavate spaces of agency and struggle from everyday performance practices—clothing, gardening, healing, trading, worshipping, architecture, and homemaking—to reveal an impressive repertoire of conscious, creative, critical, contrapuntal responses to the imperialist project that exceeded the verbal. The Comaroffs intervene in an academically fashionable textual fundamentalism and fetish of the (verbal) archive where “text—a sad proxy for life—becomes all” (1992:26). “In this day and age,” they ask, “do we still have to remind ourselves that many of the players on any historical stage cannot speak at all? Or, under greater or lesser duress, opt not to do so” (1997:48; see also Scott 1990)? There are many ethnographic examples of how nonelite people recognize the opacity of the text and critique its dense occlusions and implications in historical processes of political economic privilege and systematic exclusion. In Belize, for 148 Dwight Conquergood example, Garifuna people, an African-descended minority group, use the word gapencillitin, which means “people with pencil,” to refer to middle- and upperclass members of the professional-managerial class, elites who approach life from an intellectual perspective. They use the word mapencillitin, literally “people without pencil,” to refer to rural and working-class people, “real folks” who approach life from a practitioner’s point of view.2 What is interesting about the Garifuna example is that class stratiŽ cation, related to differential knowledges, is articulated in terms of access to literacy. The pencil draws the line between the haves and the have-nots. For Garifuna people, the pencil is not a neutral instrument; it functions metonymically as the operative technology of a complex political econ- omy of knowledge, power, and the exclusions upon which privilege is based. In his study of the oppositional politics of black musical performance, Paul Gilroy argues that critical scholars need to move beyond this “idea and ideology of the text and of textuality as a mode of communicative practice which provides a model for all other forms of cognitive exchange and social interaction” (1994:77). Oppressed people everywhere must watch their backs, cover their tracks, suck up their feelings, and veil their meanings. The state of emergency under which many people live demands that we pay attention to messages that are coded and encrypted; to indirect, nonverbal, and extralinguistic modes of communication where subversive meanings and utopian yearnings can be sheltered and shielded from surveillance.

maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution, and from the resulting support of public opinion.”3 Even if courts are not empowered to protect them (and, indeed, even if courts are so empowered), constitutionally entrenched human rights – qua “maxims of political morality” – can serve as shared, fundamental grounds of political-moral judgment in a political community.4 Nonetheless, contemporary liberal democracies typically empower their courts to protect constitutionally entrenched human rights.5 Is it appropriate – is it a good idea, all things considered – for liberal democracies to do so?6 I have argued elsewhere that the answer is yes; there is no need to rehearse my argument here.7 The more serious – and more difficult – question is this: How great should the courts’ power to protect constitutionally entrenched human rights be; in particular, should it be the power to have the last word when the courts conclude that the law in question violates an entrenched human right (the last word, that is, short of an extremely improbable event: a successful, supermajoritarian effort to amend or repeal the entrenched provision on which the court based its decision)? I have argued elsewhere that the courts’ power should not be so great; the judicial power to protect constitutionally entrenched human rights should be the power of judicial “penultimacy,” not the power of judicial “ultimacy”: the power to have, not the last word, but only the penultimate word – for example, a word that may be overruled by ordinary legislation.8 Canada, in 1982, and the United Kingdom, in 1998, each opted for a system (each for a different system) of judicial penultimacy.9 In the United States, however, the Supreme Court exercises the power of judicial ultimacy: No state legislature, nor even Congress, may overrule by ordinary legislation a decision by the Court that a law is unconstitutional; such a decision may be overruled only (later) by the Court itself or by extraordinary, supermajoritarian lawmaking, in the form of constitutional amendment.10 This important question therefore arises: Given that the Supreme Court of the United States exercises the power of judicial ultimacy, should the Court, in protecting constitutionally entrenched human rights, exercise the power deferentially? That is, in a case in which it is claimed that a law violates a constitutionally entrenched human right, should the Supreme Court inquire merely whether the counterclaim that the law does not violate the right is reasonable – and if the Court answers yes, uphold the law? Or, instead, should the Court exercise its power nondeferentially; should it determine for itself whether the law violates the right – and if it answers yes, strike down the law? A claim that a law does not violate a right is reasonable if rational, well-informed, and thoughtful persons could affirm the claim. As James Bradley Thayer put it: “The reasonable doubt... of which our judges speak is that reasonable doubt which lingers in the mind of a competent and duly instructed person who has carefully applied his faculties to the question. The rationally permissible opinion of which we have been talking is the opinion reasonably allowable to such a person as this.”11 The choice here is best understood as a choice between two different judicial attitudes or orientations. For a judge to adopt a deferential attitude – for her to be oriented deferentially – is for her to be prepared to rule that a challenged law does not violate a constitutionally entrenched human right if the claim that the law does not violate the right is reasonable.12 By contrast, for a judge to adopt a nondeferential attitude is for her to be prepared to rule that a challenged law violates a human right if in the judge’s own view the law violates the right – even if the claim that the law does not violate the right is reasonable. The most famous and influential argument for the sort of judicial deference I have in mind was made by James Bradley Thayer in the final decade of the nineteenth century, in an essay in the Harvard Law Review: “The Origin and Scope of the American Doctrine of Constitutional Law.”13 Even now, in the first decade of the twenty-first century, Thayer’s essay remains the locus classicus of the argument that in the exercise of their great power to protect constitutional norms, the courts – including the Supreme Court – should proceed deferentially: [The court] can only disregard the [challenged] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one – so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply – not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.14

It’s Supreme Court nomination time again, which means that it will soon be nomination hearing time, which means that Elena Kagan will soon be asked how she believes the Constitution should be interpreted. But just in time comes a new book — “The Living Constitution,” by David A. Strauss — that tells us not to bother about that question because, odd though it might seem, the Constitution does not play a central role in constitutional interpretation. In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.” Although rhetorically we have a constitutional legal system — one constrained by a command given in the past and embodied in a sacred text — in fact, Strauss contends, we have a common-law legal system “built not on an authoritative, foundational . . . text,” but out of “precedents and traditions that accumulate over time” and serve as a constraint on “transient public opinion.” To some extent, Strauss is right. Day to day the courts view (and configure) the facts and issues of a case in the light of previously established “landmark” decisions; the words of the Constitution are often not invoked. At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.

American Moral Rights statutes will not pose a challenge to the conventional, purely economic, account of American intellectual property law if a satisfactory account of those statutes can be given based solely upon economic considerations. Providing such an account has been tried, most prominently in a thorough and rigorous paper by Henry Hansmann and Marina Santilli, who acknowledge that non-economic considerations may have provided some motivation for these laws, but suggest that “much of the incentive for adopting moral rights legislation derives from other considerations,”49 primarily externality concerns familiar in law-and-economics analyses. This Part explains why, in light of the logic of the economic argument and the actual provisions that we observe in Moral Rights statutes, any attempt at economic reduction of these statutes is unlikely to succeed. We can begin by noting, with Hansmann and Santilli, that if granting artists a right of integrity is in fact an economically “reasonable exception” to property law’s “general prohibition on servitudes in chattels,” that must be because current owners “can seriously affect the interests of the artists who created those works or of other persons.”50 We also can borrow Hansmann and Santilli’s succinct enumeration of the three relevant interests that current owners of an artwork can seriously affect: First is the artist’s own “pecuniary interests” in the sales price that his or her future works might bring. Because “each of an artist’s works is an advertisement for all of the others,” harm that an owner does to one of an artist’s works decreases market demand for that artist’s future work.51 The resulting decrease in the prices at which the artist could sell future work would diminish both the artist’s potential wealth and the artist’s incentives for producing new work. Second is the pecuniary interest of previous purchasers of the artist’s work. Diminishing the artist’s reputation by altering one of the artist’s existing works lowers the price that collectors could get by reselling the artist’s other already completed works.52 Third is the public-at-large’s non-pecuniary interest in preserving works intact as “important elements in a community’s culture” or as “the embodiment of an idea.”53 Altering works necessarily sets back this interest. Because a current owner who decided to alter a work in his or her possession would personally bear only a small fraction of these costs—that is, because the alteration would have few or no negative effects on the current owner, but could have substantial negative externalities—owners might make such alterations more frequently than is socially optimal.54 Since concerns about externalities are a staple of economic analyses of law, an economic explanation for Moral Rights laws might therefore seem natural: giving artists the right to prevent post-sale alterations of their works promotes efficiency by limiting undesirable externalities.55 Thus, for example, VARA prohibits both reputation-harming alterations and the destruction of visual artworks that are culturally significant.56 If we examine this line of reasoning more closely, however, its persuasiveness vanishes. There are several general concerns with the plausibility of any account, such as Hansmann and Santilli’s, based on reputational externalities, and several specific concerns arise when we consider how well the account matches the principal features that we actually observe in Moral Rights laws. Let us start by considering the general concerns. If a key aim of Moral Rights law really is to maximize the aggregate market value of an artist’s artworks by elevating the artist’s reputation, thereby protecting the pecuniary interests of both the artist and owners of the artist’s works, logical symmetry would suggest that just as artists are permitted to prevent alterations that owners would like, so too they should be permitted to make changes to their own artworks even after selling them, whether or not the owners approved, provided only that the changes increase the value of the artist’s reputation more than they inconvenience the owner. (A tacit assumption of this economic account is that artists are always the best judges of what effect alterations will have on their reputation; thus, artists alone can decide what changes to prevent or allow.) Yet, of course, giving artists such a right to make changes would be quite startling.57 Such a right is not a standard element of “Moral Rights,” and no American law gives artists that right. In fact, I am aware of no law anywhere in the world that gives artists such a right.

Another reason for focusing on a broad and complex integrity framework (rather than the narrower spectrum of corruption) relates to the diversity of the phenomena under study. There seems to be a need for differentiation and nuance when researchers reflect in research and policy on the causes of integrity violations (including types of corruption) and the effectiveness of anti-corruption and integrity policies. Phenomena such as bribery; patronage and favoritism; private time misbehavior; fraud; intimidation and discrimination; and so forth might be caused by different characteristics of the involved individuals, the organization (culture and structure), and the environment (De Graaf, von Maravic, & Wagenaar, Citation2010).

A broader framework also is relevant for reflection on what helps to protect integrity and prevent integrity violations, including corruption.

THE CASE FOR AN INDEPENDENT RIGHT OF ATTRIBUTION The discussion in the foregoing parts of this Article focuses on the applicable case law in the areas of both copyright and section 43(a), and demonstrates the inherent difficulties with applying both the copyright and section 43(a) models to safeguard the interests protected by the right of attribution. An author can be deprived of attribution in a variety of circumstances even though no copyright or section 43(a) violations exist. Based on the foregoing analysis, it is clear that the authorial interests that are the focus of the right of attribution are protected only coincidentally through the invocation of alternate legal theories. Thus, if the United States truly is concerned with protecting authorial interests, it must contemplate enacting an explicit right of attribution. In many of the cases discussed in the foregoing parts, plaintiffs asserted both copyright infringement and section 43(a) causes of action. Batiste v. Island Records, Inc., [FN228] discussed in Part IB, is illustrative. There, the plaintiff songwriters could not prevail on their copyright claim because of the existence of a valid copyright assignment, and the defendant had secured the permission of the assignee prior to the release of the infringing album. [FN229] The plaintiffs in that case also raised a section 43(a) claim, based on the defendant's conduct of digitally sampling the plaintiffs' song and including it in the album, without attributing co-authorship of the defendant's song to all three plaintiffs. [FN230] The Fifth Circuit denied the application of section 43(a) as a means of enforcing the attribution interest in this instance because there was no evidence that consumers were confused or deceived by either the *1026 defendant's use of plaintiff's work or the incomplete authorship attribution. [FN231] The court further observed that the plaintiffs' claim that two of the brothers were improperly excluded from the liner notes accompanying the defendant's album also failed to suggest consumer confusion, especially because the liner notes did credit the band in which the omitted brothers performed. [FN232] The law's failure to provide authors with a right of attribution independent of both copyright infringement and section 43(a) is tellingly illustrated by the facts of Batiste. Copyright law in this country safeguards economic interests, rather than the authorial interests protected by the right of attribution. Section 43(a) of the Lanham Act can be used to safeguard the right of attribution in reverse passing off cases only where the court is satisfied that consumer confusion exists. Yet, consumer confusion is a concept totally unrelated to the authorial interests violated by a defendant's failure to attribute authorship. The Batiste court frames the attribution inquiry improperly because it is forced to determine attribution rights within legal frameworks ill-suited for the application of this important right. Whether consumers are confused by the defendant's actions, or whether the defendant has violated the plaintiff's economically based copyrights, are separate inquiries from whether the defendant has failed to attribute authorship of a work to someone entitled to such attribution. Moreover, the question whether the defendant's actual attribution in the liner notes would satisfy an independent right of attribution is a separate issue relating to the appropriate scope of the right of attribution. [FN233] In light of the current status of the law, this is not an issue the Batiste court even could address. Clearly, the crafting and application of an independent right of attribution can only be tackled by Congress or the judiciary, once the need for such an explicit right is accepted. Legal commentators often manifest skepticism regarding the benefits for the American legal system of adopting moral rights. [FN234] Of particular concern is the perceived conflict between adequate moral rights protection and the first amendment freedoms of authors desiring to build *1027 upon, and interpret, the creative works of others. [FN235] Moreover, powerful entertainment and publishing industries fear that their commercial practices may be disturbed if the United States were to adopt legislation more protective of authorial interests. [FN236] Notwithstanding these concerns, I have argued elsewhere that the United States' legal system is woefully inadequate in its protections of authors' interests, and that a comprehensive moral rights package is necessary to validate and safeguard authors' personality and spiritually based interests. [FN237]

As Lord Bridge has said, defining the term ‘jurisdiction’ is difficult, because it has many shades of meaning in different contexts, with new meanings being acquired as the law develops.45 A venerable working test is to examine three questions: in what actions does the court have jurisdiction; to what places is that jurisdiction confined; and to what persons does the jurisdiction extend?46 In Singapore, jurisdiction has been defined as meaning the court’s authority to hear and determine a dispute brought before it.47 For Professor Dockray, at its root jurisdiction means power, or the source of a court’s powers.48

This similarity in meaning between jurisdiction and power has resulted in the terms being used almost interchangeably in this context. For example, adjacent headings in Master Jacob’s article are ‘Powers of the court under the inherent jurisdiction’ and ‘Inherent powers exercisable by summary process’.49 In Singapore it has been held that the term inherent jurisdiction is a misnomer, with a better expression being simply that a court has certain inherent powers.50 This view was expressed by the Singapore Court of Appeal, whose jurisdiction is defined by statute, so it is perfectly understandable that it would prefer the innate nature theory, which would enable it to exercise inherent powers. Under the vesting theory a court that is the creature of statute has no inherent jurisdiction.

A new study conducted by the World Health Organization (WHO) in 36 countries found that two-thirds of sexually active women who wished to delay or limit childbearing stopped using contraception for fear of side effects, health concerns and underestimation of the likelihood of conception. This led to one in four pregnancies being unintended.

Whilst unintended pregnancies do not necessarily equate to pregnancies that are unwanted, they may lead to a wide range of health risks for the mother and child, such as malnutrition, illness, abuse and neglect, and even death. Unintended pregnancies can further lead to cycles of high fertility, as well as lower educational and employment potential and poverty – challenges which can span generations.

Over the past half century, Roe v. Wade has been a bedrock of constitutional rights extending beyond abortion. The Supreme Court decision overturning this ruling, issued Friday, makes clear that those other rights founded on the same principle of privacy, including gay sex, same-sex marriage, interracial marriage, and the freedom to use contraception, are now also called into question.

Writing for the majority in Dobbs v. Jackson, Justice Samuel Alito states that “​​nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” ​​But, in a solo concurring opinion, Justice Clarence Thomas explicitly calls on the Court to overturn other such constitutional rights.