Feb
17

Yuval Noah Harari's Dismal Nihilism

            Yuval Noah Harari is an Israeli historian with a love for the long view, as in where did we, as a species, come from, the topic of his first book, Sapiens: A Brief History of Humankind (2014), and where we, as a species, are going, the topic of his second book, Home Deus: A Brief History of Tomorrow (2016). Of course, the latter book depends on our ability to move from the past to the future through the challenges presented by the present. Just how will get from where we have been to where we are going?

            He tackles the present in his third book, 21 Lessons for the 21st Century.

            The topics he addresses are familiar enough.

            Artificial intelligence may well change the nature of work, yielding a transformation as significant, perhaps more so, than the industrial revolution. We need to rethink distributive justice if most of us will soon have no productive role in the economy.

            But who will decide who gets what?

            Big data is big brother’s new incarnation. But it is not the state that controls and watches, but a handful of tech companies who control our digital lives. Can we wrest control of our own lives from algorithms that discern our every mood, whim and fancy? Harari is clear – offline time is good for the soul. Count him among a growing chorus of writers who rightly fret that the “community” created by social media is more malevolent than not.

            “Facebook’s crucial test,” he writes, “will come when an engineer invents a new tool that causes people to spend less time buying stuff online and more time in meaningful opportunities with friends. Will Facebook adopt or suppress such a tool?”

            I think we know the answer. Facebook is a vortex, drawing ever more into its web; what incentive will it have to loosen its grip on the automatons it mines for data and revenue. Social media is rapidly becoming the metric of social control in China, where algorithms yield citizenship scores for citizens. Good scores yield preferred access to life’s good things. Score low enough and then what – no food?

            But Harari is no Cassandra. The end isn’t near, he wants to believe; we have choices to make and we can choose a better future. He wants us to learn to “keep our fears under control and be a bit more humble about our views.”

            That sounds like a defense of some form of pluralism, the view that there are multiple, and sometimes conflicting, visions of the good life all entitled to equal respect and regard. Pluralism makes modesty and circumspection into virtues.

            But why is that? If my vision of the good is, in fact, the truth, then ought I not defend the truth against those whose vision of the good, true and beautiful is inconsistent with mine? Is tolerance over-rated, diversity oversold?

            Buried within pluralism is the unstated assumption that tolerance and diversity will yield, in time, a vision of the good that all people of good will can, should and will embrace. I am to be tolerated as I express my parochial vision of the truth on the expectation that as I outgrow it, I will embrace a more universal vision of the truth. Hidden in pluralism is the monistic belief that the truth can be found, given enough time, effort and good will.

            Biography, national history, to the pluralist, is a chapter in universal history, the story Harari is anxious to tell, the tale of a species that developed consciousness, then civilizations, then theories of mind, then shared methods of arriving at, well, what exactly?

            The future? Globalism’s empty dream? Human rights for all, everywhere and all at once?

            Pluralism is in crisis just now. Harari knows it.

            We’ve come to value diversity for diversity’s sake and now the only good worthy of recognition is tolerance of difference. But does that mean that all lives matter? To put the question in that way highlights the difficulty of the question. Of course, all lives matter, in theory – everyone is entitled to equal respect, right?  But that does not mean that all lifestyles, all cultures, all attitudes toward life, are of equal utility – if you believed that, you’d go for health care to a witch doctor, not a medical doctor.

            Harari treads on dangerous grounds when his discussion reaches the level of what makes social cooperation possible. “Religions, rites, and rituals will remain important as long as the power of humankind rests on mass cooperation and as long as mass cooperation rests on belief in shared fictions.”

            Our fictions divide us into warring tribes at a time in which we face global challenges. Are there global fictions that can sustain us? Candidly, I doubt it.

            Harari’s discussion of fictions is thin. I think what he means is that cultural myths, let’s say the wisdom of the founders of this nation, sustain growth of communities: So long as they are believed as felt necessities – truths, if you will – they unite those in their thrall. But what if they are no longer recognized as necessary truths, but are seen to be time-worn contingencies? Then they no longer serve the need for truth; the ideals that once we thought worth dying for become fictions that can be taken or left. Many are the churchgoers who regard church teaching as on par with a fairy tale.

            Conflicting visions of the good prompt conflict. This is what makes immigration such a hot topic. Harari is clear sighted on immigration debates, breaking the basics down into simple terms. He notes three basic terms:

            “Term 1: The host country allows the immigrants in.

            “Term 2: In return, the immigrants must embrace at least the core norms and          values of the host country, even if that means giving up some of their        traditional norms and values.

            “Term 3: If the immigrants assimilate to a sufficient degree, over time they    become equal and full members of the host country. `They’ become `us.’”

            No one dares any longer to talk about the duty of immigrants to assimilate to the norms of their host. Today the host must yield, and accommodate difference. Immigrants aren’t welcome arrivals hoping to adapt to the norms of their host; the burden is on the host to adjust. It is a remarkable transformation borne of the collapse of pluralism.

            Harari senses this is a problem but lacks the vocabulary to describe it. Instead, he tip-toes around the perimeter of the problem.

            “At present,” he writes, “it is far from clear whether Europe [one might say North America, as well] can find a middle path that will enable it to keep its gates open to strangers without being destabilized by people who don’t share its values.”    

If we can’t find a middle path, an ability to declare that some ways of life are better than others, then we may not make it to the future, Harari suggests.

            I read with anticipation. What is the solution? What does Harari suggest?

            In the end, nothing.  After this sweeping review of the century’s challenges, Harari retreats to autobiography and discusses how meditation helps him cope with a world in flux. Mindfulness matters, he tells us; it defangs the terrors of the day.

            I suppose that’s true. But mindfulness is simply a way of making nihilism tolerable. I suspect Dostoevsky was mindful in the moments before he thought he was about to be executed. Are the answers to life’s larger questions mere fictions? Be mindful of the value of the moment. Is the world’s climate soon to become inhospitable? Be mindful. The stranger at your door demanding recognition of a way of life foreign to your fictions of preference? Mindfulness, mind you.

            It was a disappointing finish to an otherwise clear-sighted book.

            I’m not saying Harari is wrong. Perhaps the species has run its course, and there is no there, there. All is fiction save the naked lust to survive. And in a world in which appetite is destiny all we can do is know our tastes.

            If that’s all there is, we’d have never come so far as a species.

            Harari’s dismal nihilism is a counsel of despair. I want better answers. I suspect most of us do.


Feb
13

The Truth About Sentencing -- Let Jurors Hear it

         The panel of judges was uncomfortable. One judge wondered whether the United States government had brought the very issues it was complaining about upon itself by charging the defendant with crimes carrying crippling mandatory minimum prison sentences. Another judge was quick to defend the Government: wasn’t I asking the Court to endorse jurors’ ignoring the law, a practice known as jury nullification?

         I was in the United States Court of Appeals for the Second Circuit, on the 17th floor of the federal courthouse on Foley Square in Manhattan. Three judges were hearing arguments on whether the trial judge in my client’s case should prohibit me from asking the jury to disregard the law and set my client free.

         The government filed an emergency motion after a jury was picked in my client’s case, but before the jury was sworn in. It sought this extraordinary relief when it became apparent the judge just might let me tell the jury the whole truth about the case to be tried.

         The United States Supreme Court has never ruled that defense counsel cannot argue for nullification of the law. Neither has the Second Circuit. But it is received wisdom that such arguments are prohibited.

         My client, a male, was 31 when he had a year-long relationship with a 15 year old, a female. She cannot give consent as a matter of law. In other words, the law deems her incapable of saying yes to sex, ignoring the fact the young people do so all the time. The age of consent was increased dramatically in the 19th century in response to pressure from the Women Christian’s Temperance Union.

         If the teen couldn’t consent, was she forced, a judge asked.

         No she was not forced.

         My client is charge with filming an encounter on his cell phone. The phone traveled across state lines before he used it. Hence, it is a federal offense, carrying a 15-year-mandatory minimum. He also downloaded the film before deleting it. Because that involved transportation of the image to the “cloud,” which is out of state, he transported the images across state lines, another federal offense, this one carrying a mandatory minimum of five years.

         No one ever saw the image but the teen, the person who produced it, and law enforcement agents. It was deleted almost immediately.

         Why these federal child prosecution charges? Why these obscene sentences? Congress wants to prevent exploitation of children.

         This is not child pornography; this is not exploitation of a child.

         My client faces mandatory prison time in related state charges for what lawyers call “statutory rape.” The feds are charging him with production and transportation of child pornography.

         The trial judge was rightly outraged by the savagery of it all. In pre-trial rulings, he gave me permission to try to introduce evidence of the mandatory minimums and to argue nullification of the law to the jury. In other words, I was given a green light to tell jurors what the consequences of a jury verdict of guilty would be. Such information is normally kept secret, lest it influence the jury.

         Simply put, nullification gives a jury, sitting as the conscience of the community, the right to acquit if it believes the government is behaving unjustly. There is a long history of nullification in the United States.

         But the panel of New York judges wasn’t buying it, or so it seemed.

         Judges worry that nullification will yield chaos.

         The judges are wrong.

         Years ago, a juror called me after a murder trial. My client, on the cusp of manhood, had been convicted of murder after he senselessly shot another young man in a dispute over a girl. The evidence was overwhelming.

         “Why didn’t you tell us what would happen?” the juror wanted to know after reading about the 45-year sentence imposed a couple of months after the verdict.  Because the law won’t let me, I said. It was an awkward moment.

         Juries should sit in judgment not just of the defendant, but of the government. If the government errs in applying the law, behaving in an unfair, an unjust, or an unconscionable manner, jurors ought to be able to reject the government’s case. Treating jurors as automatons in the Factory of Justice demeans jury service.

         It also damages the republic.

         Yes, we can vote for lawmakers and presidents. Yes, the president can appoint, and lawmakers can confirm, judges. And we are free to seek reform of the law in legislation.

         But the law never rescues unpopular clients from a vindictive government. It just doesn’t happen. Hell, the political process seems hardly to work at all these days on things we all agree we need, such as roads, bridges and railways.

         Juries are legitimating institutions. They are the people themselves sitting in judgment over elected and appointed officials. Jurors are a direct referendum on discrete prosecutorial decisions.

         Prosecutors often argue that they represent the people. They seek to hold defendants accountable. But prosecutors aren’t “the people;” jurors are selected at random from a community to serve as the eyes and ears of the people. How do you ask jurors to do that important job while hiding from them the consequences of their decisions?

         It’s a dishonest shell game that warrants contempt.

         Judges ought not to fear nullification; neither should prosecutors. Those entrusted with applying and enforcing the law ought to seek to build bridges of trust between themselves and the communities they serve. Nullification can help build those bridges.

         Nothing in our law prohibits other than a policy unsupported by precedent, a mere preference that the people be marginalized while the professionals play spin the bottle with justice.

         Nullification was common at the time of the nation’s founding. Indeed, preservation of trial by jury was one reason the colonists gave for seeking independence from Britain. The founders would weep, I suspect, if they saw what became of trial by jury.

         I could hear Jefferson’s tear drops falling on the floor of the Second Circuit this morning. We’ve gone from a people intent on liberty and jealous to defend it to supine cowardice.

x

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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