31 March 2014
The national security state came of age during the Cold War, under perpetual threat of a sudden, catastrophic nuclear exchange that could terminate civilization almost instantaneously at any time, and which was therefore an era of institutionalized paranoia. In the national security state, the response to perpetual danger was perpetual vigilance — one often heard the line, the price of peace is eternal vigilance, which has been attributed to many difference sources — and this vigilance primarily took the form of military preparedness. The emergence of the surveillance state as the natural successor to the national security state is a development of the post-Cold War period, and is partly the result of a changed threat narrative, but it is also partly a response to technological advances. During the Cold War the technological resources to construct a universal surveillance state did not yet exist; today these technological resources exist, and they are being systematically implemented.
In the universal surveillance state, the state takes on the role of panopticon — a now-familiar motif originating in the thought of English Utilitarian Jeremy Bentham, but brought to wide attention in the work of French philosopher Michel Foucault (cf. A Flock of Drones) — which has profound behavioral implications for all citizens. It is well known not only to science but to even the most superficial observer of human nature that people tend to behave differently when they know they are being watched, as compared to when they believe themselves to be unobserved. The behavioral significance of universal surveillance is that of putting all citizens on notice that they are being observed at all times. In other words, we are all living inside the panopticon at all times.
Rather than the rational reconstruction of the state, this is the perceptual reconstruction of the state, in which all citizens have a reason to believe that they are under surveillance at all times, and at all places as well, including within the confines of their homes. The tracking of electronic telecommunications — today, primarily cell phone calls and internet-based communication — means that the state reaches in to the private world of the individual citizen, his casual conversations with friends, relatives, colleagues, and neighbors, and monitors the ordinary business of life.
In order to effectively monitor the ordinary business of life of the presumptively “typical” or “average” citizen, the state security monitors must develop protocols for the observation and analysis of this vast body of data that will differentiate the “typical” or “average” citizen from the citizen (or resident, for that matter) who is to be the object of special surveillance. In other words, the total surveillance state must develop an algorithm of normalcy, in contrast to which the pathological is defined — the “normal” and the “pathological” are polar concepts which derive their meaning from their contrast with the opposite polar concept. Any established pattern of life that deviates from the normalcy algorithm would be flagged as suspicious. Even if such flagging incidents fail to reveal criminality, disloyalty, or other behaviors stigmatized by the state, such examples can be used to further refine the algorithm of normalcy in order to rule out the “noise” of the ordinary business of life in favor of the “signal” of pathological behavior patterns.
Those with a hunger for conformity will perhaps interpret a descriptive algorithm for the identification of normalcy as a prescriptive guide to a life that will not attract the attention of the authorities. Many, of course, will give no time to the thought of surveillance. There will be others, however, who are neither indifferent nor conformist, but who will court if not provoke surveillance. And just as the algorithm of normalcy gives a recipe for conformity, it also gives a recipe for non-conformity. Spectacular instances of non-conformity to an algorithm of normalcy will invite surveillance, and this will have potentially unexpected consequences.
One can only wonder how long it will take for individuals hungry for either fame or notoriety — and not caring which one results from their actions — manage to hack the pervasive surveillance state, pinging the system to see how it responds, and using this same system against itself to catapult some individual into the center of national if not global media attention. One could, I imagine, obtain a number of cell phones, land lines, email addresses, and begin using them to exchange suspect information, and eventually be identified as a special surveillance target. If this activity resulted in an arrest, such an experience could be used by the arrested individual as the basis for a book contract or a legal suit about compromised civil rights. Indeed, if the perpetrator was sufficiently clever they could construct the ruse in such a manner as to implicate “sensitive” individuals or to cast serious doubt upon the claims made by law enforcement officials. Such a gambit might be milked for considerable gain.
Given the currency of celebrity in our society, it is nearly inevitable that such an event will occur, whether motivated by the desire for fame, infamy, wealth, power, or self-aggrandizement. Just as Dostoyevsky wrote in a note appended to the beginning of his short story, “Notes from Underground,” (a passage of some interest to me that I previously quoted in An Interview in Starbucks), such individuals must exist in our society:
The author of the diary and the diary itself are, of course, imaginary. Nevertheless it is clear that such persons as the writer of these notes not only may, but positively must, exist in our society, when we consider the circumstances in the midst of which our society is formed. I have tried to expose to the view of the public more distinctly than is commonly done, one of the characters of the recent past. He is one of the representatives of a generation still living.
The overt celebrity state and the covert surveillance state are set to collide, perhaps spectacularly, the more power that is organized around the universal surveillance state. Given the fungibility of power, the political power represented by the universal surveillance state can be readily translated into other forms of power, such as wealth and fame, and the more political power that in concentrates in the universal surveillance state, the riper is this universal surveillance state to being used against its express intention. In other words, the attempt to turn the state into a hard target through universal surveillance, turns the state into a soft target for attacks that exapt the surveillance regime for unintended ends.
Politicians, while savvy within their own metier, like anyone else, can be woefully naïve in other areas of life, which virtually guarantees that, at the very moment when they believe themselves to secured themselves by way of the implementation of a total surveillance regime, they are likely to be blindsided by a completely unprecedented and unanticipated exaptation of their power by another party with an agenda that is so different that it is unrecognizable as a threat by those who study threats to national security. In the way that hackers sometimes cause mayhem and damage for the pure joy of stirring up a ruckus, hackers of the total surveillance state may be motivated by ends that have no place within the threat narratives of the architects of the total surveillance state.
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30 July 2013
One of the most famous thought experiments of twentieth century philosophy of mind is presented in Thomas Nagel’s paper “What is is like to be a bat?” Nagel’s point was that consciousness involves a point of view, and that means that there is something that it is like to be in being some conscious organism. Here is the opening paragraph of Nagel’s paper:
Conscious experience is a widespread phenomenon. It occurs at many levels of animal life, though we cannot be sure of its presence in the simpler organisms, and it is very difficult to say in general what provides evidence of it. (Some extremists have been prepared to deny it even of mammals other than man.) No doubt it occurs in countless forms totally unimaginable to us, on other planets in other solar systems throughout the universe. But no matter how the form may vary, the fact that an organism has conscious experience at all means, basically, that there is something it is like to be that organism. There may be further implications about the form of the experience; there may even (though I doubt it) be implications about the behavior of the organism. But fundamentally an organism has conscious mental states if and only if there is something that it is to be that organism—something it is like for the organism.
The choice of a bat for this thought experiment is interesting. As a mammal, the bat shares much with us in its relation to the world, but its fundamental mechanism of finding its way around — echolocation — is sharply distinct from our primate experience of the world, dominated as it is by vision. Thus while what it is like to be a bat overlaps considerably with what it is like to be a hominid, there are also substantial divergences between being a bat and being a hominid. A bat has a different sensory apparatus than a hominid, and the bat’s distinctive sonar sensory apparatus presumably shapes its cognitive architecture in distinctive ways.
As a philosopher I have a great fascination with the sensory organs of other species, which seem to me both to pose epistemological problems as well as to suggest really interesting thought experiments. In my post on Kantian Critters I argued that if human beings must have recourse to the transcendental aesthetic in order to sort out the barrage of sense perception that the brain and central nervous system receive, that other terrestrial species, constituted as they are much like ourselves, must also have recourse to some transcendental aesthetic of their own (or, if you prefer Husserl to Kant, and phenomenology to idealism, other species must employ their own passive synthesis). This interpretation of Kant obviously presupposes a naturalistic point of view, which Kant did not have, but if we grant this scientific realism, the Kantian insight regarding the transcendental aesthetic remains valid and may moreover be extrapolated beyond human beings.
Distinctive transcendental aesthetics of distinct species would follow from distinct sensory apparatus and the distinctive cognitive architecture required to take advantage of this sensory apparatus. This implies that distinct species “see” the world differently, with “see” here understood in a comprehensive sense and not in a purely visual sense. Although bats rely on sonar, they “see” the world in his comprehensive sense, even if their eyes are not as good as our hominid eyes, and not nearly as good as the eyes of an eagle. A couple of ethologists, Dorothy L. Cheney and Robert M. Seyfarth, have written several books on the Weltanschauung of other species, How Monkeys See the World: Inside the Mind of Another Species and Baboon Metaphysics: The Evolution of a Social Mind.
Does a primate have more in common, Weltanschauung-wise (if you know what I mean), with a flying mammal such as a bat (since any two mammals have much life experience in common) or with a terrestrial reptile such as a serpent? Primates don’t know what it is like to fly with their own wings, but they also don’t know what it is like to move along the ground by slithering. Does a primate have more in common, again, Weltanschauung-wise, with a reptile that has given up its legs or with an octopus that never had any legs? We might be able to refine these questions a bit more by a more careful consideration of particular sensory organs and the particular cognitive architecture that both is driven by the development of the organ and makes the fullest exploitation of that organ for survival and reproductive advantage possible.
Among the most intriguing sense organs possessed by other species but not by homo sapiens is the pit of the pit viper, which is a rudimentary sensing organ for heat. Since pit vipers are predators who typically eat small, furry animals with a high metabolism and presumably also a high body temperature, being able to sense the body heat of one’s prey would be a substantial selective advantage.
Because the pit of the pit viper represents such a great selective advantage, one would expect that the pit will evolve, driven by this selective pressure. To paraphrase what Richard Dawkins said of wings, one percent of a infrared sensing organ represents a one percent selective advantage, and so on. Thus a one percent improvement of an existing pit would represent another one percent selective advantage. While it would be difficult to observe such subtle advantage in the lives of individual organisms, when in comes to species whose members number in the millions, that one percent will eventually make a significant difference in differential survival and reproduction. A statistical study would reveal what a study of individuals would likely obscure.
There is a sense in which the pit of the pit viper is like an eye for perceiving infrared radiation. The infrared radiation spectrum lies just beyond the visible spectrum at the red end, so having a pit like a pit viper in addition to color vision would be like being able to see additional colors beyond red. Having a slightly different visible spectrum is not uncommon among other species. Many insects see a little way into the ultraviolet spectrum (at the opposite end of our visible spectrum from red) and flowers are said to present colorful displays to insects in the ultraviolet spectrum that we cannot see (except for the case I heard about some years ago about a man whose eye was injured and as a result of the injury was able to see a little way into the ultraviolet beyond the visible spectrum).
The eye itself, whatever portion of the electromagnetic spectrum it accesses, is a wonderful example of the power of an adaptation. The eye is so useful that it has emerged independently several times in the course of evolution of life on earth. I don’t know much about the details, but insect eyes, mollusc eyes, and vertebrate eyes (as well as several other instances) are each the result of separate and independent emergence of the eye. The mollusc eye and the vertebrate eye represent an astonishing example of convergent evolution, since the structure of the two instances of eyes is so similar. The eye is of course a provocative evolutionary example because of a famous passage from Darwin himself, who wrote about “organs of extreme perfection”:
“To suppose that the eye with all its inimitable contrivances for adjusting the focus to different distances, for admitting different amounts of light, and for the correction of spherical and chromatic aberration, could have been formed by natural selection, seems, I freely confess, absurd in the highest degree. Yet reason tells me, that if numerous gradations from a perfect and complex eye to one very imperfect and simple, each grade being useful to its possessor, can be shown to exist; if further, the eye does vary ever so slightly, and the variations be inherited, which is certainly the case; and if any variation or modification in the organ be ever useful to an animal under changing conditions of life, then the difficulty of believing that a perfect and complex eye could be formed by natural selection, though insuperable by our imagination, can hardly be considered real. How a nerve comes to be sensitive to light, hardly concerns us more than how life itself first originated; but I may remark that several facts make me suspect that any sensitive nerve may be rendered sensitive to light, and likewise to those coarser vibrations of the air which produce sound.”
Of this quote Richard Dawkins wrote in The God Delusion:
“Darwin’s fulsomely free confession turned out to be a rhetorical device. He was drawing his opponents towards him so that his punch, when it came, struck the harder. The punch, of course, was Darwin’s effortless explanation of exactly how the eye evolved by gradual degrees. Darwin may not have used the phrase ‘irreducible complexity’, or ‘the smooth gradient up Mount Improbable’, but he clearly understood the principle of both.”
Partly due to this Darwin quote, the evolution of the eye has been the topic of some very interesting research that has helped the clarify the development of the eye. There is a wonderful documentary on evolution, the first episode of which was titled Darwin’s Dangerous Idea (presumably intended to echo Daniel Dennett’s well known book of the same title), which an excellent segment on the evolution of the eye which you can watch on Youtube. In this documentary the work of Dan-Eric Nilsson of the University of Lund is shown, and he demonstrates in a particularly clear and concrete way the step-by-step process of improving vision through the increasing complexity of the eye. When I was watching this documentary recently I was thinking about how the pit of the pit viper resembles the early stages of the evolution of the eye.
The pit of the pit viper is a depressed, folded area lined with infrared sensitive nerve endings that allows limited directional sensitivity. In the long term future of the pit of the pit viper, which at present seems to correspond to the earliest stages of the evolution of the vertebrate eye, sometimes called a “cup eye,” there would seem to be much room for improvement. Of course, the details of infrared (IR) perception are different than the details of human visible spectrum perception, but not so different that we cannot imagine a similar series of stepwise improvements to the infrared pit that might, in many millions of years, yield sharp, clear, and directional infrared vision. If this infrared vision became sufficiently effective, it is possible that brain and body resources might be redirected to focus on the pits, and the eyes could eventually degrade into a vestigial organ, as in bats and moles. After all, snakes gave up their legs, so there’s no reason they shouldn’t also give up their eyes if they have something better to fall back on.
There is another possibility, and that is the evolutionary advantage that might be obtained through adding a pair of fully functional IR “eyes” to a pair of fully functional visible spectrum eyes. Such a development would be biologically costly, and it would be much more likely that a pit viper would chose one evolutionary path or the other and not both. Yet there are some rare instances of biologically costly organs (or clusters of organs) that have been successful despite the cost. The brain is a good example — or, rather, large complex brains that evolve under particular selection pressures but which later are exapted for intelligence.
Natural selection is a great economist, and often reduces organisms to the simplest structure compatible with their function. This is one of the reasons we find the shapes of plants and the bodies of animals both elegant and beautiful. The economy of nature was resulted in the fact that a large brain, and the intelligence that large brains make possible, are rare. Despite their rarity, and their biological expense, large complex brains do emerge (though not often), and, like the eye (which has emerged repeatedly in evolutionary history), large brains have emerged more than once. Interestingly enough, complex eyes and large complex brains are found together not only in primates but also in molluscs.
The octopus (among other molluscs) is bequeathed a large, complex brain because the octopus went down the evolutionary path of camouflage, and the camouflage of some molluscs became so elaborate that almost every cell on the surface of the organism’s skin is individually controlled, which means a nerve connected to every spot of color on (or under) the skin, and a nervous system that is capable of handling this. It requires a lot of processing power to put on the kind of displays seen on the skin of octopi and cuttlefish, and an evolutionary spiral that favored the benefits of camouflage also then drove the development of a large, complex brain that could optimize the use of camouflage.
The octopus also has remarkably sophisticated eyes — eyes that are, in some respects, very similar to yet more elegant in structure than primate eyes. Our eyes are “wired” from the front, which gives us a blind spot where the optic nerve passes through the retina; mollusc eyes are “wired” from the back and consequently suffer from no blind spot. (“Wired” is in scare quotes here because it is a metaphor to refer to eyes being wired to the nervous system; while electrical signals travel down nerves, the connection between distinct nerve cells is primarily biochemical and not electrical.)
How an octopus sees the world is as fascinating an inquiry as what it is like to be a bat — or a serpent, for that matter. Both the octopus and an arboreal primate live in a three dimensional habitat, and this may have something to do with their common development of sharp eyesight and large brains, although there are vastly greater number of organisms in the sea and in trees with far smaller brains and far less cognitive processing power. (A recent study reported in The New York Times suggests a link between spatial ability and intellectual innovation, and while the study was primarily concerned with the ontogenesis of creativity, it is possible that the apparatus of spatial perception and the cognitive architecture that facilitates this perception is phylogenetically linked to intellectual creativity.) This simply shows us that intelligence is one strategy among many for survival, and not the most common strategy.
A large, complex brain is very costly in a biological sense. In a typical human being, the brain represents less than three percent of total body weight, yet it consumes about twenty percent of the body’s resources — that’s a very big chunk of metabolism that could be directed toward running faster or jumping higher or reaching farther. Nothing as unlikely as the brain’s disproportionate consumption of resources would come about unless this expenditure of resources bequeathed some survival or reproductive advantage to the organism possessing such a high cost of ownership. The brain isn’t a luxury that produces poetry and art; it is a survival machine, optimized (in hominids) by more than five million years of development to make human beings effective hunters and foragers. The brain was so successful, in fact, that it made is possible for human beings to take over the planet entire and convert it to serving human needs. Thus the relatively rare and costly strategy of developing a large, complex brain paid off in this particular case. (One may think of it as a high risk/high reward strategy.)
If the evolution of the brain and the exaptation of intelligence to produce civilization did not result in the disproportionate evolutionary success of a single species, it seems likely that we would see intelligence emerge repeatedly in evolutionary history, much as eyes have evolved repeatedly. On other worlds with other natural histories, under conditions where intelligence does not allow a single species to dominate (possibly due to some selection pressure that does not operate on Earth), it is possible that evolution results in the repeated emergence of intelligence just as on Earth evolution has resulted in the repeated emergence of eyes. On Earth, intelligence preempted another developments, and means that not only human history but also natural history were irremediably changed.
In The Preemption Hypothesis I argued that industrialization preempted other developments in the history of civilization (for more on this also see my post Human Agency and the Exaptation of Selection). This current line of thought makes me realize that purely biological preemption is also a force shaping history. Consciousness, and then intelligence arising from biochemically based consciousness, is one such preemption of our evolutionary history. Another preemption of natural history that has operated repeatedly is that of mass extinction. But whereas historical preemptions such as the development of large, complex brains or industrialization represent a preemption of greater complexity, mass extinctions represent a preemption of decreased complexity.
It seems that “weedy” species that are especially hearty and resilient tend to survive the rigorous of mass extinctions; the more delicate and refined productions of natural selection, which are dependent upon mature ecosystems and their many specialized niches, do not fare as well when these mature ecosystems are subject to pressure and possible catastrophic failure. One could think of mass extinctions, and indeed of all historical preemptions that favor simplicity over complexity, as a catastrophic “reset” of the evolutionary process. Events such as mass extinctions can favor rudimentary organisms that are sufficiently hardy to survive catastrophic changes, but, as we have seen, there is also the possibility of historical preemptions that favor greater complexity. The Cambrian Explosion, for example, might be considered another instance of an historical preemption.
There is a tension in the structure of history between continuity and preemption. In the particular case of the earth, the continuity of natural history has been interrupted by the preemption of intelligence and then industrialization. These preemptions of greater complexity — in contradistinction to preemptions of lesser complexity, as in the case of mass extinctions — may provide for the possibility of the continuity of earth-originating life beyond the terrestrial biosphere. In the case of an otherwise sterile universe, the intelligence/industrialization preemption would be a basis of a new explosion or radiation of earth-originating life in the Milky Way. In the case of a universe already living, it may be only intelligence and industrial-technological civilization that is a novelty in the natural history of the universe.
Whatever happens on the largest scale of life, as long as life continues to evolve on the earth, its development is likely to be marked by both continuity and preemptive developments. In thinking about the pit viper, I suggested above that the pit viper might eventually, over many millions of years, develop a fully functional pair of IR eyes in addition to its visible spectrum eyes. This suggestion points to an interesting possibility. In so far as complex life is allowed to develop in continuity, with a minimum of preemptions, specialization and refinement of existing mechanisms of survival may give rise of species of greater complexity than what we know today. While mass extinctions have repeatedly cleared the ground and given a more or less blank slate for the radiation of resilient weedy species, this may not always be the case.
As our earth and the solar system of which it is a part becomes older, catastrophic events may become less common. For example, stray bodies in the solar system that might collide with the earth, while once common in the early solar system, eventually end up colliding with something or getting swept out of the path of the earth’s orbit by the gravity of Jupiter. If, moreover, civilization expands extraterrestrially and seeks to protect the earth as an existential risk mitigation measure, life on earth may become even more secure and even less subject to disruption and preemption than in the past. New species might eventually come into being with a delicate complexity of sensory organs and accompanying cognitive architecture that facilitates these senses. Imagine species with a whole range of sensory organs that complement each other, without former mainstay sensory organs being reduced to vestigial status, and this might possibly be the future of life on Earth.
Eventually the most interesting question may not be, “What is it like to be a serpent?” but, “What will it be like to be a serpent?”
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The reader can compare my earlier post, The Future of the Pit Viper, which was the origin and inspiration of this post.
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27 January 2013
My title today, Human Agency and the Exaptation of Selection, is perhaps not a very good title, but if anyone out there has read a representative selection of my posts they will be aware that all of these topics — human agency, exaptation, and natural selection — are matters to which I have returned time and again, and I feel like I beginning to see my way clear to a point at which I can systematically tie together these themes into something more comprehensive than occasional remarks and comments of the sort that are the usual fare of blog posts.
All macro-historical revolutions to date have simply happened to us; they were not planned or chosen or made to happen, they just happened. And before the emergence of human agency in history, all the great transitions of natural history — i.e., the natural equivalent of a macro-historical revolution — simply happened without design, purpose, or direction.
Human efforts (including individual choices) in constituting historical realities have, to date, been like the myriad accidents of natural history that together and cumulatively constitute natural history. Even though human consciousness gives meaning and value to these individual decisions, and at times we participate in collective meanings and values, none of this has yet risen to the level of consciously constituting an epoch of history on the basis of human meanings and values. We have given meaning and value to circumstances that we have (accidentally) brought about, but have not brought about a civilization or a way of life in response to a determination to realize particular meanings and values. This is the social equivalent of Schopenhauer’s assertion that, while we are free to do what we want, we are not free to want what we want.
To shape the future of history, to plan for the kind of civilization to come, and possibly even to create a kind of civilization consciously intended and brought into being, would be historically unprecedented on a scale beyond the unprecedented events of human history (such as I recently wrote about in Invariant Civilizational Properties in Futurist Scenarios, i.e., how it would be unprecedented for an invariant of civilization to be overturned), because the trend of human history being shaped by non-human forces is far older than human history, and far older than our species.
Naturalism and its Others
It is at this point that the naturalistically inclined philosopher of history must obviously and unavoidably part company with those who retain theological conceptions of the world and its development. The idea of the world, up until the emergence of human intelligence from human consciousness, being utterly unplanned, undirected, and undesigned is a rigorously (and indeed rigidly) naturalistic conception that excludes even the most distant and unconcerned creator of deism.
Even the religiously and theologically inclined who make no attempt to defy what science tells us about the world must retain some minimal sense of purpose and direction — perhaps a quasi-Aristotelian final cause — since without this there remains nothing upon which to pun one’s beliefs that is not strictly a part of nature — no transcendent eschatology or soteriology.
It should be obvious from my other posts that I am writing from a rigorously naturalistic perspective, but sometimes one must be explicit about these things so as not to leave any wiggle room, so that one’s naturalistic formulations will either be interpreted naturalistically or rejected tout court because they are naturalistic. What I have written above about unprecedented historical developments simply makes no sense is one deviates from a strict naturalism, and that is why I make it explicit here.
The Threshold of Agency
The imposition of human will upon unthinking and uncomprehending nature began in the most rudimentary ways — the chipping of stone for tools and the gathering of sufficient sustenance such that this might last beyond the next meal. At this level of planning and provision for the future, the human mind is no different from other mammalian minds, since we know that other mammals make rudimentary tools and store food for the future.
To define the point at which human planning and provision for the future exceed this common mammalian standard, and thereby also exceed the possibility of being entirely the result of instinct refined by natural selection, genetically encoded in our biology (and the ultimate limit of evolutionary psychology), involves a sorites paradox (i.e., the paradox of the heap). While we need not define a particular point that human planning exceeds the mammalian norm, we can content ourselves with a span of time (viz. between the emergence of biologically modern homo sapiens and the advent of the historical period strictly speaking, i.e., a span of time encompassing human prehistory). In accordance with what I have called the Truncation Principle, we can in fact recognize an historical discontinuity, even if that discontinuity comes about gradually.
Over some period of time, then, human planning and provision exceeded the mammalian norm and became something historically unprecedented. We tend to magnify this transition, calling ourselves the “rational animal” and associating our reason with that which is uniquely human. One of the great themes of our time is that of human beings asserting their control over the planet, assuming de facto right over the disposition of the biosphere. In fact, we don’t even control our own history, much less the history of the planet. We affect our history and the natural history of our planet, but we do not control them.
We have risen to the level of micro-historical efficacy with the first rudimentary steps of tool making and food storage. We rose to the level of meso-historical efficacy in constituting human societies. These societies began as emergent accidents of human behavior, but I think that we can assert that, over time, we have consciously constituted at least a few limited examples of communities intentionally constituted to certain ends. We rose to the level of exo-historical efficacy in constituting the largest institutions and political entities that have dominated human history. Many of these institutions and political entities have also been accidents of history, but, again, I think that we can say that there are at least some explicit examples of the purposeful constitution of human institutions and political entities.
In other words, have passed at least three thresholds of agency defined in terms of ecological temporality. For human agency to rise to the level of macro-historical efficacy we would need to rise to the level of shaping entire eras of civilization and history. We aren’t there yet. As with the natural historical emergence of human communities and later larger institutions, which began with historical accidents and were only later rationalized, human macro-history remains at the level of our accidental participation. Millions upon millions of conscious human actions were required to create the industrial revolution, but no one consciously sought to create the industrial revolution; although it was, in a sense, made by us, in a more important sense it simply happened to us.
The Problem of Progress
In several posts — Civilization and the Technium, Biology Recapitulates Cosmology, and Progress, Stagnation, and Retrogression among them — I have mentioned Kevin Kelly’s explicit arguments for progress in his book What Technology Wants. I have mentioned this because, in terms of our current intellectual climate, he is an outlier, although among techno-philosophers he may represent something closer to a consensus. Among contemporary academic philosophers and historians, almost no one argues for progress — to do so is considered an unforgivable form of naïveté.
I mention this again here because the above treatment of human agency in terms of ecological temporality might provide a quantitative way to talk about human progress and the progress of human civilization that is not tied to the development of some particular technology. Any time anyone asserts that there has been progress because we now have airplanes and computers whereas once we did not, someone else responds by pointing to the moral horrors of the twentieth century, such as genocide, to demonstrate that technological progress cannot be conflated with moral progress. Moral progress requires an entirely separate argument, as does aesthetic progress. (So too, presumably religious, ideological, or eschatological progress, but I will not attempt to address any of these at present.)
The expanding scope of human agency through levels of ecological temporality can be interpreted as a kind of progress independent of any technological development. In so far as human agency is centrally implicated in human morality, the progress of human agency could even be interpreted as a form of moral progress. Now, this is an admittedly deceptive way to formulate it, because I do not here mean “moral” in the narrow sense of “ethical” but rather “moral” in the way we would use the term in a phrase like, “the moral lives of human beings.” Another way to formulate this would be to call it human progress, but this is probably no improvement at all. I mean progress in the form of asserting human agency over the peculiarly human aspects of our lives — emotions, relationships, interactions, evaluations, creations, and so forth.
A Darwinian conception of history
A Darwinian conception of history and of civilization is simply a conception of history and civilization fully in accord with Darwin’s thorough-doing naturalism, and especially the role of selection in the constitution of historical entities (like human history and human civilization). We can understand Darwinian conceptions of history and civilization as aspects of a Darwinian cosmology. The above formulations of the ecological temporal thresholds of human agency allow us to do this in an interesting way.
When human agency crosses a threshold from being subject to accidents, including its own cumulative accidents, to asserting control over the whole process of agency and its consequences — i.e., what it brings about — what is essentially happening is that human agency is taking over for natural selection; selection, or some part of selection, is transferred from nature to humanity. In other words, the expansion of human agency is the exaptation of selection. Selection that began as natural selection, taken over by the expanding agency of human beings, becomes human selection. This is exaptation not of organic structures, but of behavioral structures, i.e., exaptation on the order of the will.
To assert that the expansion of human agency is the exaptation of selection is to formulate a Darwinian conception of history and of civilization that does not need to declare the progress is impossible to account for in a selective paradigm, and also is not obligated to argue that progress is inherent in the very nature of things, which it is not.
One can understand the problematic idea of “progress” (which we may someday be able to take out of scare quotes) as the increasing human ability to impose human direction, purpose, and design upon history.
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22 June 2011
Since I’ve written a number of posts on exaptation, but the term is not widely familiar, I suppose I ought to repeat a definition so the reader isn’t lost for the lack of a single world. The Biology Online website defines exaptation as follows:
An exaptation is a biological adaptation where the biological function currently performed by the adaptation was not the function performed while the adaptation evolved under earlier pressures of natural selection.
Briefly, and in other words, exaptation is when something (say, a structure or behavior) that emerged in one set of circumstances turns out to be useful in some other set of circumstances. These formulations sound a little awkward, but we need to employ formulations like this in order to avoid slipping into teleology. For example, if we say that exaptation is when something intended for one purpose finds use for another purpose, then we have to wonder whose intentions and purposes we are talking about. Teleological thinking is in no sense necessary, but human minds tend to think teleologically (most likely a consequence of our agency detector) and so we must go the extra cognitive mile in order to not mislead ourselves about the nature of the world.
So, given this biological origin of the idea of exaptation, what do I mean by the exaptation of intuition? I will try to explain.
A couple of days ago in Fashionable Anti-Philosophy I mentioned that I am listening to Leonard Susskind’s book The Black Hole War: My Battle with Stephen Hawking to Make the World Safe for Quantum Mechanics. One of the themes that is emerging from Susskind’s book is the difficulty of attaining an intuitive understanding of quantum theory, if this is at all possible. While I think that Susskind over overstates his case, he has a good point.
It may not be possible to understand quantum theory on an intuitive level. There are several famous quotes to this effect. Niels Bohr famously said that, “Anyone who isn’t shocked by quantum physics has not understood it.” And Max Born said, “No language which lends itself to visualizability can describe quantum jumps.” One of the most famous quotes in this vein is from Richard Feynman: “I think it is safe to say that no one understands quantum mechanics. Do not keep saying to yourself, if you can possibly avoid it, ‘But how can it possibly be like that?’ because you will go down the drain into a blind alley from which nobody has yet escaped. Nobody knows how it can be like that.”
There is a long tradition of skepticism in philosophy that has given us arguments to show that we either don’t know anything at all (Gorgias), or we don’t know what we think we know (Socrates), or we know a lot less than we think we do (Pyrrho). One recent example of this (which I have cited previously in Transcendental Non-Naturalism, is Colin McGinn’s transcendental naturalism, given exposition in his book Problems in philosophy: The Limits of Inquiry:
“Philosophy is an attempt to get outside the constitutive structure of our minds. Reality itself is everywhere flatly natural, but because of our cognitive limits we are unable to make good on this general ontological principle. Our epistemic architecture obstructs knowledge of the real nature of the objective world. I shall call this thesis transcendental naturalism, TN for short.” (pp. 2-3)
I noted in the post in which I originally reproduced this quote the similarity McGinn’s position to that of Plantinga, so I won’t go into that at present. McGinn’s preferred example of incomprehensibility beyond the “constitutive structure of our minds” is the mind-body problem, a perennial conundrum of philosophy, but we could just as well take the quantum structure of the universe as our example, or the relationship between general relativity and quantum physics.
I remain skeptical of skepticism, even in its most recent and subtle forms. That is not to say that I don’t think that we very often go wrong in our attempts to understand things, but only that we can also keep correcting ourselves and in doing so we incrementally approximate the truth. This is a position that is sometimes called fallibilism, and is closely related to Popper’s conception of science advancing through the falsification of theories. The falsification of theories is an iterative process in which we attempt to preserve what is of value in a refuted theory while going beyond it to plumb the depths of the world and make our account of the same a little closer to being right.
Whatever our failures in understanding the world, we continue to try to understand, and when we continue to try we discover, as Einstein said, that the most incomprehensible thing about the universe is that it is comprehensible. But not perfectly so. The universe is partially comprehensible and partially incomprehensible, and the horizon between the comprehensible and the incomprehensible is always being pushed further outward by our continued attempts at understanding.
In our attempts to understand that which is at the very limits of our ability to understand, we have to make an effort, a real cognitive effort that is taxing if not at times exhausting, and we have to get creative in our attempts at understanding. The same-old-same-old isn’t going to serve us very well at the limits of understanding, so we have to do something more.
One of the things that we do is to formulate analogies. Susskind’s book is full of analogies, and he rightly explicitly acknowledges them as analogies, picking apart their failures and comparing different analogies that attempt to give us an intuitive leg up on difficult scientific concepts. It is unfortunate that he is not similarly as careful and as critical with his metaphors, since he repeatedly invokes the contemporary idiom of the mind being “wired” (or, worse, “hard wired”) to think and understand in a certain way. As a metaphor, the use of “wired” is more poetry than science, but since Susskind’s anti-philosophy deprives him of many conceptual resources he has pretty much painted himself into a corner and doesn’t have many other options for making his point.
And here, with analogies, we come to the exaptation of intuition, for an analogy is an exaptation of intuition. An analogy attempts to show for us the similarity between two things, and when one of these things is familiar and intuitively clear while the other side of the analogy is unfamiliar and distant from intuition, we are taking the familiar intuition and exapting it in order to to give an intuitive gloss on unintuitive concepts. As the evolution of bodies is often comes about by exaptation, so too the evolution of our minds, and the ideas understood by our minds, can come about by the exaptation of intuition.
Analogy is one method for the exaptation of intuition, but it is not the only method. I discussed some another approaches to the exaptation of intuition (though I didn’t call it this) in The limits of my language are the limits of my world. I suspect that those who teach for a living have a whole range of ready exaptations of intuition in order to make the unfamiliar intuitively clear. There is no reason that this incremental clarification cannot be continued indefinitely, and that is why I remain a skeptic of skepticism, or, rather, that nihilistic skepticism that maintains that nothing whatsoever can be known. Perhaps what can be known is very little, but it is a treasure to us however little it is. One must recall that the idea of zero was once advanced mathematics familiar to only a few specialists, and now children learn this in elementary school. Many similar examples could be adduced.
The technical term in philosophical logic for this making intuitive of that which began in as a precision technical concept is materialization. Even among philosophers the term, and the idea for which the term stands, is not well known. Husserl developed the idea of materialization, and most Anglo-American philosophers don’t read Husserl, and, as we have seen, many scientists (especially, it seems, physicists and cosmologists) avoid philosophy altogether. Here is what Husserl says about materialization:
“One must sharply distinguish the relationships belonging to generalization and specialization from the essentially heterogeneous relationships belonging, on the one hand, to the universalization of something materially filled into the formal in the sense of pure logic and, on the other hand, to the converse: the materialization of something logically formal.”
Edmund Husserl, Ideas pertaining to a pure phenomenology and to a phenomenological philosophy, section 13
And from the earlier Logical Investigations:
“It is now plain that what we may call the ‘materialization’ of this form, its specification in definite propositions, is possible in infinitely many ways, but that we are not completely free in such specification, but work confined within definite limits.”
Edmund Husserl, Logical Investigations, Investigation IV
It is unfortunate that the idea of materialization is not better known, because it is a conceptual resource like that this can go such a long way toward clarifying our understanding, like the transformation of zero from being advanced mathematics to being elementary mathematics. We can allow the ordinary evolution of knowledge to take its sedate pace and a development like this may take 500 years, or a thousand years. That’s fine if you have the time for this.
If we reflect upon what the conscious and explicit application of the scientific method did when applied to technology — which created the industrial revolution and inaugurated a new way of life whose end point has not yet been glimpsed — it gives a sense of what rational activity can do for human life. The conscious and explicit application of philosophy to science might well do the same at some time in the future, and this may be what it takes to surpass the industrial revolution and inaugurate a way of life as incomprehensible to industrial society as the way of life in industrial society would have been incomprehensible to our nomadic or agricultural forebears.
Imagine, for a moment, education accelerated in the same way that industrial processes were accelerated at the beginning of the nineteenth century, and you can start to get a sense of what is possible, and this, too, is an exaptation of intuition.
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1 October 2010
An exaptation is a biological adaptation where the biological function currently performed by the adaptation was not the function performed while the adaptation evolved under earlier pressures of natural selection.
I have found the idea of exaptation to be so interesting that this forum has “exaptation” as a category, since I have returned to the idea time and again for its interesting implications and applications. One could even say that the idea of exaptation has been exapted from biology and, by generalization and extrapolation, been put to use in many fields quite unrelated to that field in which it was introduced.
There is one area of human endeavor, however, in which exaptation is as old as the profession itself, and this is striking since it has been called the oldest profession, and that is politics. Political exaptation has been around as long as politics has been around, except that it is not called exaptation. It goes by a number of names, perhaps most commonly it is known as being “co-opted,” thought today being “hijacked” is perhaps at least as common, and in informal discussion is probably more familiar. The third definition of “co-opt” in the Free Online Dictionary runs as follows: “3. To take or assume for one’s own use; appropriate: co-opted the criticism by embracing it.” This is precisely the sense in which “co-opted” is used in politics, and the sense in which I mean it here.
There are, of course, many other terms we could use, like grandstanding or others that slip my mind as I write this. This simply shows us that exaptation is part and parcel of politics, always has been, always will be. It is also one of the things that makes politicians dishonest (actually, it is a symptom rather than a cause) and therefore makes people cynical about politics.
While the ride may be a thrill at first, there are few things ultimately more disappointing if not devastating for someone who truly believes in a cause than to find that cause suddenly picked up by a politician or a political party and catapulted into the limelight. To become a political buzzword, or to become the cause célèbre of the moment virtually guarantees that one’s issue will just as quickly be seen as dated, and once an issue appears to be dated it is not only forgotten, it is actively spurned because no one wants to be connected with anything passé.
Politics is all about fashions — fashions of language and fashions of ideas. And in so far as politics is about fashion, being au courant is a virtue while being passé is an unforgivable vice.
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16 September 2010
In a couple of posts, Epistemic Space: Mapping Time and Transient Spaces, I tried to describe the peculiar character of spaces that are purpose-built for transience, spaces not intended for lingering or loitering, much less for residing. Cities are especially rich in transient spaces, such as sidewalks, elevators, escalators, pedestrian malls, bridges, hallways, bus and train stations, and so forth. There are also many examples of what we might call quasi-transient spaces, where lingering is expected, but only for a socially acceptable period of time, such as restaurants, laundromats, and museums. If you stay too long in a museum you will be viewed with suspicion. Such quasi-transient spaces are often precisely metered, as in the case of car parks, which at least reduces the ambiguity of what span of time is socially acceptable. Some museums are beginning to go this route by selling tickets with precise entry times.
Now, as it happens, transient spaces are exactly those spaces in which people end up loitering, and in fact it is enough of an issue that laws against loitering are passed so that police can, by legal compulsion, compel people not to linger where they are supposed to only pass through (a concrete and personal example of the state’s monopoly on the legitimate use of force). Such spaces, however, are intrinsically ill-defined and open to exaptation. A sidewalk is a paradigmatically transient space, but a sidewalk cafe is a paradigmatic example of a place to linger. I remember especially when I stayed a couple of weeks in Paris in 1996 how the broad boulevards bequeathed by Baron Georges-Eugène Haussmann’s nineteenth century rational reconstruction of the city also provided very wide sidewalks, and in some places the sidewalk cafes were obviously permanent installations. For example, low wooden platforms were built on sloping sidewalks in order to provide a flat terrace for tables and chairs. Also, outdoor heaters were commonly employed to make it possible to use these sidewalk cafes after dark and during the cooler months.
One of my favorite stories of an exapted transient space (I can no longer recall where I heard this) concerns the bus station in Brasília, the capital of Brazil, mostly designed by urban planner Lúcio Costa and architect Oscar Niemeyer, and which recently celebrated its fiftieth birthday (which I celebrated in Fifty Years of Brasília). As I heard the story, Brasília, being a planned and therefore artificial city, had no planned space for people watching, no organized space for loitering, no place to watch what A. E. Housman saw as, “…the moving pageant file, Warm and breathing through the street,” and so people began hanging out at the bus station. Here was movement and interest, like a waterfall of humanity, always the same yet always new.
Truth be told, most urban planning has been disastrous, subject to fads and to theories with only the most tenuous connection to reality. Time and again the most hopeful and advanced urban planning has resulted in spaces that are not used as they are intended to be used. This sounds innocent enough, except that the biggest failures of urban planners in the recent past were the creation of “projects” which concentrated poverty and became exapted primarily for criminal activity. This is not the kind of natural and healthy exaptation that an urban planner would like to see as his grand design is translated into actual living conditions for actual human beings. These spaces intended for living became spaces used for transient purposes, such as the manufacture and distribution of controlled substances.
Now the cities that built projects in the 1960s and early 1970s are tearing them down, and dealing with a whole new set of problems that have been created by attempting to mix uses and avoid the concentration of poverty and dependency. Also, the demolition of projects has been attended by protests against “gentrification,” which I briefly mentioned in The Rational Reconstruction of Cities but which I have not yet given the attention to which it is entitled based on its intrinsic interest.
Planning is not always a disaster. Very close to my office, where I am now writing this, is Orenco Station, which is a planned “community” that was constructed around a light rail terminal when Portland’s light rail system was extended to the west side of the city. I have talked to many people in the local real estate and construction industry, and everyone wants to claim responsibility for being involved with this development. As we all know, success has a thousand fathers,while failure is an orphan. I was told that when a delegation came from eastern Europe to visit examples of successful development in Oregon that there were two places they wanted to see: Spirit Mountain Casino and Orenco Station. Personally, I find Orenco Station hideous, and I can feel its artificiality as strongly as though I were strolling in Disneyland, but apparently I am in the minority here.
The spaces in which we live are the antithesis of transient spaces. We might simply call them non-transient spaces. But the places in which we are supposed to live are not always the places in which we actually do live, and the places we we do in fact live are not always the places we are supposed to live. Not only is our living space not distributed according to intention or according to a rational plan, it also changes over time. Thus old warehouses become loft apartments, and then we get so accustomed to people living in warehouse lofts that residential structures are purpose-built to look like old warehouses. A friend of mine once called these “lofts for yuppies” in a disdainful tone.
If we consider the contemporary busy professional, devoted more to career than to home and family, one’s soi-dissant “home” is a place one returns to for sleep. But such a professional spends more time out of home than at home. Indeed, I suspect that such a professional — today, both men and women — live the bulk of their time in Transient Spaces, moving from sidewalk to subway car to cafe to performance venue, and so forth.
The spaces in which we live partially constitute the kind of persons that we are; we construct our lives today as we construct our artificial environments. And this is important. What kind of a person lives in Transient Spaces? The answer is so obvious it scarcely need be made explicit: transients live in transient spaces. Of course, the kind of transients I describe above are wearing silk suits and carrying lap tops, rather than wearing rags and pushing shopping carts, but the point here is that this is a different of degree and not a difference in kind.
Industrialized civilization with its need for the mobility of labor and its regimentation of clock and calendar has created the need for transient spaces, the market has responded to the need by building transient spaces, and transient spaces have created transients — transients of all kinds, all conditions, and of all social classes. The children of middle class households who spend their time on city streets are as much transients as the silk suited business man or the beggar with his cardboard sign.
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18 March 2010
In The Pretense of Prediction I wrote that one finds, “side-by-side in contemporary societies there are ideologies that are growing and other that are contracting, ideologies that are newly born and others that are dying, ideologies undergoing transformation and ideologies caught in a limbo of stasis, their prospects unknown.” In the same post I also wrote in regard to contemporary ideologies that, “It is difficult to name them, since it is difficult to be objective on the topic precisely because the only ideology that can change the fates of individuals and nation-states is one that resonates within us. We do not understand a successful ideology as much as we feel it and respond to it.”
It is crucial to understanding the political situation of our time to understand which ideologies are living options for us at this time. To distinguish between living and dead ideologies can be quite difficult, and one must make an effort to go beyond ideological appearance in order to reach ideological reality. Ideologies, like fish or insect with adaptive coloration, often mask themselves so that they are difficult to distinguish from the background. The most successful ideology is that ideology that is pervasive throughout our thought and reasoning without our even being aware of it. Once we become aware of an ideology it is often already dead or at least dying.
When we look to the contemporary world with an eye toward explicating its living ideologies, first of all we see perennial human motivations such as greed, self-interest, and the desire to live in comfort. A motivation of this kind is not in itself an ideology, though such motivations are powerful constituents in all ideologies. For our present purposes, I will not attempt a definition of an ideology, but I will position ideology as being more comprehensive than perennial human motivations but less comprehensive than a Weltanschauung.
No less a philosopher than Alfred North Whitehead, co-author of Principia Mathematica with Bertrand Russell, wrote, “I now state the thesis that the explanation of this active attack on the environment is a three-fold urge: (i) to live, (ii) to live well, (iii) to live better.” (The Function of Reason, p. 8, also reformulated on p. 18) It is this perennial desire to live, to live well, and to live better that underlies the perennial motivations of greed and self-interest mentioned above. Such drives must be accounted a part of human nature, but in themselves they do not rise to the level of constituting ideologies. Thus while these perennial motivations are certainly present in contemporary history, they do not act within history as ideologies do.
Because contemporary living ideologies are mostly unconscious, they are mostly not named, so that the attempt to formulate a short list of living ideologies must force us into coining a number of awkward neologisms. The lack of names for many living ideologies corresponds to the lack of a clear conception of what that ideology is, so that coining a neologism, however imperfect, can only suggest an even more imperfect conceptualization of the ideology.
With these caveats in mind, I am going to attempt to name a few living ideologies, not necessary all of them ideologies that decisively change the destinies of both states and individuals (as I have focused on previously), but ideologies that are a living influence in the lives of many people today, and which not infrequently can be seen — perhaps implicitly — on the evening news.
Non-denominational Marxism — By this I mean a generic leftism that no longer feels itself bound to slavish adherence to Marxist texts, but which is still in sympathy with Marxist thought.
Anarchism — While mostly limited to young people without jobs or families, and overlapping at points with non-denominational Marxism, anarchism needs to be recognized as a separate ideology as they stand in that tradition of those armed bohemians who have given organized nation-states so much trouble in the modern era.
Environmentalism — Environmentalism is easily the most comprehensive and pervasive ideology of our time. For the same reason that it is comprehensive, it also consists of diverse strains that cannot all be reconciled or summed up in one definition.
Fundamentalism — Christian, Islamic, Hindu, Jewish, you name it, every religious tradition has its fundamentalist wing that seeks a revolutionary return of social life to imagined forms it might have taken prior to the many revolutions that have shaped the modern world.
Nation-statism — This is the most awkward of our ideological designations today, and the least recognized. Nevertheless, as it is the default position of practically all elites and diplomats, the centrality of the nation-state to political life, and the incomprehensibility of any alternative, makes it a powerful if misunderstood ideology. There is a sense in which nation-statism is what nineteenth and twentieth century nationalism has become with its institutionalization in the state system.
Terrorism — On every inhabited continent that is a significant minority that is devoted to terrorism as an end in itself. Where civil wars drag on for decades, terror becomes a habit, and the absence of terror in perpetual war zones is as inconceivable as the absence of nation-states is for nation-statism.
Resistance — It would better, though more awkward, to call this resistance/struggle/rebellion. It overlaps at one extreme with terrorism and at another extreme with non-denominational Marxism. With these three ideologies we could define a spectrum in which resistance is the middle ground, the Aristotelian “Golden Mean” of disaffected radicals, and that is why, despite the fact that it is not recognized as an ideology, it is one of the most powerful ideologies of our time.
My above list is admittedly highly imperfect. It is intended as a starting point, not as a final typology of contemporary ideologies. If I continue to think about this I will no doubt need to return to the list to revise and amend it, perhaps adding neglected ideologies and merging others (such as the spectrum I noted above in Resistance).
In my above attempt to think critically and systematically about contemporary ideologies it strikes me that it is a peculiar characteristic of ideologies in our time that means and ends are conflated. I can imagine someone telling me, “You can’t count terrorism or resistance as ideologies, because they are means to ends, not ends in themselves.” But this is precisely what I am saying. I believe that a great number of people have ceased to believe in ends and aims and instead believe in means. As people come to passionately believe in certain means, these means are transformed from mere means to ends in themselves.
Terrorism has become an end in itself. It is the most obvious example of what we might call an exapted ideology: something that originally was not an ideology but which has evolved into an ideology. Starting from this glaring example, I think if we look carefully, most of the items on my above list can be understood as means that have, to a greater or lesser degree, been transformed into ideologies. The ideologies of today are mostly exapted ideologies.
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24 March 2009
Usually I don’t think much about the philosophy of law, but I recently listened to fourteen lectures on the philosophy of law delivered by Stephen Mathis as part of the Modern Scholar series produced by Recorded Books. Recently I wrote about social exaptation, and it occurs to me now that law is one among social institutions that might be exapted.
Exaptation is a constant in our lives. Whether it takes the form of tennis balls used as toys for dogs or shopping carts used as portable storage for the homeless or in a more abstract form such as the humorous exaptation of concepts in irony, we are surrounded by both things and ideas that are put to use for purposes other than those for which they were intended or for the function they naturally emerged to serve.
Although Mathis’ lectures on the philosophy of law were not tendentious or ideologically motivated, one thing I took away from listening to them was the extent to which the law is intrinsically conservative, or, perhaps better (as that ideological word invites misunderstanding), law has an intrinsic bias in favor of the past.
How does this bias toward the past come about? If we think of the common law tradition, in which there is no constitutional basis but only a history of case law, it is obvious that precedent plays a central role. A ruling in the past establishes a convention that is followed in later rulings preserves the past into the present. And we may think of the establishment of a constitution or formal statutes as a “re-setting” of precedent. Laws and constitutions are not written in a vacuum, and the legal history that precedes such an effort must loom large in the minds of those so occupied.
The presence of the past in the law immediately puts us in mind of the claims made on behalf of the “original intent” of the founders, i.e., those who wrote the US Constitution. I am deeply skeptical of these original intent arguments; Mathis’ lectures were not exactly sympathetic to the doctrine, but seemed ready to give the idea the benefit of the doubt. I am skeptical about it because most of the advocates of the doctrine of original intent in the law are ideologically motivated and are promoting a reactionary social agenda.
Some of the objections to the historically informed performance movement in music are entirely parallel to the arguments that have been put forward against the role of original intent in law.
Besides the bias toward the past in law, another thing I took away from the lectures was the role of principle in law. Mathis emphasized that judges, in reviewing law, look for a principle and resist a patchwork of ad hoc legislative acts with no real legal principle involved in them.
What is the principle behind original intent as a legal doctrine? It could be formulated in many ways, but one formulation of original intent could be cast in terms of exaptation. Original intent is a proscription upon the exaptation of law.
As a principle, this strikes me a being rather weak and with no theoretical standing. Why ought law not be exapted? Why should we not apply laws differently than intended by the legislators who wrote them?
One can easily imagine a society in which the exaptation of law is pushed to the utmost extent for the express purpose of testing the limits and possibilities of the law. A creative and innovative society might want to experiment with the law in this way to determine its precise meaning and scope.
Indeed, one need not imagine such a society, because this society is in fact our society. Where there is a financial incentive to re-interpret the law to the furthest extent of possible meaning, a way is found to justify this re-interpretation. One need only think of the many notorious lawsuits that routinely are reported in the popular press, in which an excuse is found to press a case against who ever has “deep pockets,” however obliquely related they may be to the cause of the lawsuit.
And then there is the obvious example of tax law. The tax law code is so large and so complex that many attorneys devote their entire careers to specializing in one small part of the tax code. No sooner is tax legislation formulated than a whole industry devotes itself to finding a loophole that will exempt their paymasters from having to pay taxes.
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