26 Aug 2013

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20 minute workout (down from planned 30 owing to very light nausea during step aerobics): 175 lowrise steps, 250 weight movements supine.


Rereading Paul Guyer on the core of the Critique: the Metaphysical Deduction (the Clue) and the Transcendental Deduction. The Metaphysical Deduction is, I am now more confident, based on apperception as judgement. “I am having a sensation of red” is among other things a judgement.

“Hey man, I’m havin’ a deja vu.” – Cheech and Chong

In the Transcendental Deduction Kant reuses the arguments of the Clue and adds further to show that all experience is formed by and comes in the form of one or more of the Categories of Quantity, Quality, Relation and Modality.

“Crime is Crime”

“Crime is crime is crime; it is not political.”

Margaret Thatcher’s and Ayn Rand’s pithy ravings often oversimplify ontologies (“there is no such thing as society” per the Thatch) and they stress the identity of concepts which also oversimplifies.

This is a great comfort to confused people.

Margaret Thatcher’s vaporings have the virtue of making the issues clear.

The Mad Woman said “crime is crime” when Bobby Sands and other IRA prisoners were striking for humane treatment in prison. The problem is that “crime” is not “crime”.

“Let’s go do some CRIMES.” “Yeah, let’s get sushi and NOT PAY.” – Repo Man

“Crime” in legal theory and legal reality requires two “things”: actus reus (act thing, or a bad act) and mens rea (mind thing, or a guilty mind). The problem with most political crimes is no clear mens rea. Why should anyone feel guilty for trying to secure something they believe in at risk of liberty, life and limb? George Washington didn’t feel guilty.

Mens rea is found in the Catholic theology of the mortal sin, which must be a grave matter with malign intent (mens rea) according to the priest I spoke with on my re-entry to practicing Catholicism.

I was concerned with the obsessive-compulsive nature of my Catholic practice in 1962, of which the grand finale was an internal police state or Inquisition…I actually proved to myself that any mortal sin, that was known to another, created the equivalent mortal sin of scandal to others, and the sin of scandal created another such sin, and so on to a grand Cantorian non-denumerable infinity.

A reading of Greek tragedy rescued me from this nonsense.

“Grave matter” means that a genuinely mortal sin might only occur in he Oval Office when the President decides to bomb another country, or in a corporate office whose CEO decides to close a plant and destroy a community. I no longer think they meant me in 1962, twenty years after the discovery of the death camps.

Now, terrorism itself deconstructs the mens rea. Both Franz Fanon and the film Battle of Algiers ask the question: can a revolutionary, pushed to terrorism by the injustice of a colonial regime, resort to terror with the mens rea of a just man? I don’t know the answer but very many people would change their negative answer (the answer of the breakfast-scoffing Papa who purples, saying, “terrorism is terrorism” in an echo of Thatcherite and Randroid self-identity) when they are strongly pro-Israel and the question becomes whether Israel can go extrajudicial, medievally so, on terrorism violence in Gaza.

And nearly all breakfast-scoffing Papas in the West would change their answer when the question became terrorism against the Nazis, the Thule of modern day debates over these issues.

We think (I think) that a decent chap should not feel guilty if his country is taken over by Nazi Space Monsters from the Planet Gorkumbo and given a new constitution defining rebellion as treason simpliciter.

Whereas if he sells his country out for cash we think he’s a douche-canoe who should have *mens rea*, a guilty mind.

Now this neglects the category of the psychotic who precisely does not have mens rea, and who fails to introspect or feel guilty (which Margaret Thatcher never did according to even sympathetic biographers). But let’s say the psychotic is a psychotic precisely because she doesn’t feel guilty.

Bobby Sands probably didn’t feel guilty for either the bombings or the strike in prison. You may think either or both actions were wrong but you cannot say that Sands agreed with you when he performed the actions (where we can analytically replace value-overloaded tests with value-free statements about who agrees with whom).

If we agree that Ireland should be independent after almost a thousand years of oppression then we don’t think Sands was psychotic. If on the other hand we think Ireland should be a part of a UK, if that’s more liberal (many thoughtful people have felt this way including John Stuart Mill) then we might think Sands was psychotic but we don’t have to. I for one don’t see why the world should have in all cases to fragment down to the smallest political units which places me on the side of some empires, but we’re examining how we think when we agree with someone’s political gestures.

Our “feelings”, actually settled common law about mens rea, are why it is a marker of democracy and decency that political prisoners be treated with what breakfast-scoffing Papas call “kid gloves”.

In the Nazi death camps, a distinction was made between political and nonpolitical prisoners but it flipped the usual polarity. Contrary to democratic practice, the criminal inmates were treated as superior to the politicals and placed in supervisory roles over them. Arguably the average IRA prisoner was treated worse by British coppers than good old Mick the recidivist bank robber.

It wouldn’t have cost Britain much to treat the IRA prisoners the same as “criminals”, perhaps a bit better, and, better treatment as compared to criminals with guilty minds might have led to an earlier settlement and saved many lives.

It certainly worked in South Africa. Nelson Mandela, previously thought to be a terrorist, was in the late stage of his imprisonment, “coddled” and treated better because the regime realized the Madiba’s mens rea.

The fall of Communism didn’t result in WWIII in large part because both sides, Communist and reformist, took their opponents’ mens rea seriously. Gorbachev dealt with the conservatives (the unreformed Communists) as if they were sincere, and they dealt with him honorably for the most part. Outside of Romania and Yugoslavia this avoided a lot of conflict.

However, capitalism, having destroyed Communism, adopts one of Stalinist Communism’s tenets, “objective guilt”. Your “objective guilt” may emerge at any time in tendencies to be a “wrecker”. Your intentions, comrade, don’t count. 12 hour days? Not relevant.

A stalinist-era diary reveals that an engineer expressed enthusiasm over building a dam only to be told, “we don’t want your enthusiasm”. You hear this crap in corporate “performance reviews”.

“Objective guilt” in particular and a brutalized “objectivity” in general is not much different than in the lower reaches of the all-powerful corporation, where one has to tread carefully when one isn’t graced by favor. You may be “objectively” found an enemy of your employer’s corporation whether you know it or not because it’s too costly (in almost all cases today) to follow traditional legal procedures or use traditional legal concepts such as mens rea. Cheapjack administrative law and a form of summary execution from the corporate point of view often follows, and the suspension or sacking.

The elimination from Western law of the controlling factor of good or on balance bad motivation takes away something the ordinary, apolitical and law-abiding citizen needs: the ability to know whether she’ll be going to jail. From an amoral economic standpoint, even criminals and prospective criminals need this knowledge, which allows them to “rationally” avoid bad acts. We all must be “rational”.

Mustn’t we.

Take a look at this video, viral in late 2011, of an ordinary bank customer being taken into custody, roughly, by a crowd of uniformed and non-uniformed cops and agents. The Citibank customer was not dressed as were the protestors for jail. She expected to be judged on her mind thing, her mens rea was neither that of a common criminal seeking to disrupt bank operations (perhaps to carry out a robbery: cf. THE BIG KNOCKOVER by Dashiell Hammett) NOR that of a guilty terrorist with naughty mens rea.

The Dashiell Hammett story is particularly interesting as a fiction which the reflective reader (that is, the reader who doesn’t regularly read policiers), will find informed by a unique tonal quality. The idea of a shadowy gang of organized criminals (a sort of Batman trope) is highly fictional to the point of weirdness to the non-policier addict because we rarely actually find such cohesiveness in “organized crime”.

If “easy Kant”, that is of the far more engaging and above all understandable chap who wrote on ethics and aesthetics is to be believed then the lack of trust found among thieves would make it difficult for organized crime to attain the level of the corporation. Many thoughtful people consider the corporation to be organized crime: das ist ein anders: it requires theorizing the social role of the corporation in which economic fear becomes the willingness to cooperate.

Back to the Citibank customer arrest video.

In a barbaric fashion the citizen can no longer “choose” (the right) shibboleths in speech and writing but must use them lest she fall under suspicion: in the corporation of being a wrecker “objectively” and therefore in an unappetizing way she may be arrested as in the video by an absurd number of operatives or in the corporation, led by Security to her car at any time. How strange: this rather resembles Marxist and not English or American jurisprudence.

Despite talk, now somewhat outdated, about “ambulance chasing lawyers”, “criminals” and the law’s delay, the reality is that the assault on mens rea has made traditional jurisprudence a luxury for the 99%, with traditional jurisprudence replaced by a circus featuring kangaroo courts and “victims rights” advocates dancing amidst burning tires. You cannot get affordable and competent legal representation in Hong Kong where I live.

cf. Leszek Kolakowski’s monumental study of the Main Currents of Marxism. Pure everyday damage (personal and environmental) extending up to psyche-wreckage at Beria’s level, at the level of Stalin’s nuclear family, and even in Koba himself explains the content of Stalinism and its perverted “objectivity”. Personal and environmental damage also explains corporate “objectivity”. The hell of a modern commute may explain corporate “objectivity”.

Of course, a commute can only partly explain anything. But a synecdoche such as the heat and insects in an unemployed engineer’s car (Falling Down, 1992) can represent everything by way of … the breaking point.

“Life Draws Us On”

Life draws us on, smiling,
As if it were a shopkeeper, showing us treasures,
Offering us bargains to be had for the bargaining,
Surprising us we who thought we had taken life’s measures,
Until we end up to our considerable amazement
A room next to the stairs that lead down into a dank and dark basement
Filled with mementoes from all the record of our days. Haze
And haze only is white and visible thru a grimy back-window
Across which, shadows flit.
But life draws us on, smiling.

Edward G. Nilges 26 August 2013. Copyright (c) 2013 Edward G. Nilges

Change Record

26 Aug 2013 Miscellaneous changes
26 Aug 2013 Poem added
26 Aug 2013 Image added


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