Myth of Moral Justice Part 3: Summary and Counterarguments

So far I have done a lot to argue against Thane Rosenbaum's The Myth of Moral Justice. Even my last post in which I tried to point out some of the things I liked was just another attack. Let me at this point try to offer a broader view of my problems with the book.

In my first post about the book, I wrote that it's two biggest flaws were first, that he was interested in emotional truth rather than factual truth, and second, that he thought morality was essentially a matter of emotions and that emotional harms can be resolved through story telling.

When it comes to morality, I am not particularly concerned about emotions. Emotions are not an important part of morality. If I had to explain how Rosenbaum gets to this place, I would argue that his personal ethics are primarily concerned with human dignity, and that as such infractions against dignity produce emotions, and the emotions occur when people are stripped of their dignity. That is about as charitable as I can be when it comes to his position, because emotions are not a big concern to ethicists.

There are multiple theories of ethics, of course, and I haven't studied any in several years. With that caveat, I am going to reconstruct some of those theories in order to show how Rosenbaum's view does not fit into any of them.

First, Aristotle argued for a virtue based ethics. There are a certain set of traditionally recognized virtues: Honesty, Bravery, Justice, Kindness, and so on. Virtue is found in the middle road between two extremes. Thus, there is a continuum of "bravery" with cowardice on one extreme and foolhardiness on the other extreme. A brave man is one who rationally examines risks before proceeding, i.e. does not foolishly charge headlong into dangerous situations, but who also does not shrink from difficulties. Aristotle was not overly concerned with damaging emotions. I find I am more receptive to Aristotle's ethics than I used to be.

Second, Kant argued that morality should be a matter of strict rules that each person should follow. We are to act only on those maxims which we can will to be universal laws. Furthermore, we are to treat human beings always as ends in themselves and never as means to an end. From this derives a lot of modern thinking about human dignity, but even this thinking is not overly concerned with human emotions. Whether someone is treated with dignity is not a matter of the emotions they have in response to your actions, in other words, it is deontological as Kant's theory is, and not consequentialist. Offenses to dignity can produce emotional harms, but that is not the motivating factor in Kant's theory.

Third, there is, of course, Utilitarianism. In it's simplest form, utilitarianism tells us to produce happiness. This leads naturally to the arguments that if morality is a matter of feeling good, then it would be best to feed the population heroin or other drugs that produce feelings of euphoria. John Stuart Mill tried to avoid this argument by distinguishing types of happiness such that lower pleasures, such as drunkeness or sex, were not as valued as higher pleasures such as art or music. That doesn't really solve the problem, though and other utilitarians have tried to modify the theory in various ways, for example, by introducing "side constraints" that limit the space of acceptable actions. I still don't find any of this convincing.

We might think that Rosenbaum is making a utilitarian argument throughout his book by discussing emotional harms. But I just don't think that is what he is doing, and even if it is, it is not well thought out. This is perhaps the third great flaw in this book: Rosenbaum's moral theory is not articulated. If he is making a utilitarian argument, then his book will not be convincing to people who are closer to Aristotle or Kant. That may be why I find it so dissatisfying.

Ultimately, I am concerned with human dignity, human rights, and civil liberties. My personal morality is largely informed by the insight that everyone has to act right--that there are right ways to act and wrong ways to act, i.e. that there are rules to follow no matter what consequences they produce. I cannot subscribe to Kantian ethics or Aristotelian ethics because I am at heart a nihilist and a pragmatist. That is to say, I can't believe in a priori theoretical constructs. The world, if not human arguments, will always show every theory to be insufficient. We must be empirical and pragmatic about truth. Nonetheless, I accept a Liberal, rights-based, dignitarian, and democratic view of the world. Thus, I would be more interested in critiques informed by values derived from these perspectives rather than all this nonsense about emotions.

I am more sympathetic to deonotological theories of ethics than utilitarian views, but I realize that neither can fully describe the world. If we assume that Rosenbaum is adopting a utilitarian theory, then he will certainly fail to make a sufficient argument against the practice of law, because those views are not particularly widely accepted. Ultimately, a successful critique of the legal system will include only those parts of the system that every ethical theory would reject. In other words, each ethical theory should be a limiting factor on the number of problems with the legal system. (Think vin diagram.) That would be the best critique.

Generally, I am more concerned about the morality of the practice of law, and as such whether a person can be moral and be a lawyer. Sometimes I doubt it because representing individuals requires zealous advocacy, strict confidentiality, and the advancement of the client's interests to the exclusion of other concerns. The best response is, as far as I can tell, that though law is nominally concerned with "justice," the practice of law, like other professions, affords opportunities for morality and immorality.

The Myth of Moral Justice

My critique of The Myth of Moral Justice will be an ongoing project as I am only half way through the book and I have yet to say half the things I want to. Hooray for stuff to write about!

Is moral justice a myth? Part 2

So what does Rosenbaum get right?

He is right to criticize the legal system first for avoiding truth and second for valuing efficiency over finding the right outcome. These two things are related, but not very closely. Certainly a legal system that prefers efficiency to the correct outcome is going to on many occasions avoid or miss the truth.

We are equivocating, though, we when talk about truth. I mentioned this in the last post and I want to draw it out more now. There are multiple conceptions of what it means for something to be true. In a basic philosophical sense, truth is a property of propositions such that a proposition is true when it matches reality. The proposition, "The grass is green" is true if the indicated grass is actually green. It is false if it is some other color. This is a very boring definition of truth.

The legal system, particularly juries and judges, are put in the place of verifying whether the grass is green, but instead of walking outside to look at the grass, it prefers to have different people come inside and tell them what color the grass is. The metaphor is a little strained, but it is essentially correct. Judges and Juries can't simply go outside because they are dealing with events that happened in the past. As such, all they have to rely on is witnesses, exhibits, and experts.

But, as I mentioned last time, the court is only able to "know" those things that are brought before it by the lawyers. This is the sort of truth that I am concerned with when it comes to the the law. I don't see the law being concerned with finding out what actually happened in any particular dispute. It is merely concerned with what happened as it is presented to the court.

This isn't the sort of truth that concerns Rosenbaum. As I said last time, he wants the legal system to search for "emotional truth," that is he wants trials to not be about violations of the law, but rather to be about finding the emotional hurt that gives rise to the action. This can be very weird in the book:

Untreated emotional injuries get played out in legal settings all the time. The law becomes the hammer for a wounded person's misplaced rage. Lawyers rename the hurt and the indignity and call it something else--the breach of a contract or the failure to exercise due care--which doesn't at all speak to the underlying grievance. The character of the hurt materializes as a legal injury, even though it began as a spiritual one. But even in this new guise--particularly in this new guise--the grief
remains. (MoMJ at 49, emphasis in original)

Rosenbaum continues this sort of language throughout the book. The problem is obvious from the first sentence: untreated emotional injuries do get played out in legal settings, but they are not the sole source of legal disputes. But imagining that they are, Rosenbaum spins stories about how contracts are breaches of sacred friendships and commercial litigants want to just tell their hurt to a court. That's fine, except that is not the way it is. Commercial litigants especially come to court in order to get money--to recover the value of their contract. In this way, he tries to force a specific proposition on the world without seeing if it matches. In other words, his theory of what gives rise to lawsuits is not true.

Ultimately, Rosenbaum is right to focus on the lack of truth in the legal system, but he fails by thinking there is a specific truth that needs to be sought out and exposed. What needs to be exposed is the reality of the situation that gave rise to the suit, not the emotional hurt of the litigants.

He gets closer to being right when he talks about efficiency and the distortions it creates. This is the major focus of the six chapter of the book in which he discusses settlements, plea bargains, perjury, and the rules of evidence. I want to talk about each of these at least a little bit, and I'll go in that order.

Rosenbaum is on his strongest ground when it comes to settlements:

In the area of civil law, nothing is more questionably moral than settlements--as conventionally applied and practiced in our legal system. While in some cases they do indeed reflect the best interests and personal wishes of the parties to the action, in most situation they merely serve to silence the story in return for a cashier's check. The reflexive impulse towards settlements has turned courtroom lawyers into backroom negotiators. It has removed face-to-face, direct encounters between the parties. . . . There is enormous moral value in having parties to a legal action sit in a courtroom, surrounded by strangers, and swear to tell the truth to each other, and to the world. . . . (MoMJ at 93-94)

I actually agree with that, but those ellipses leave out of a lot. Rosenbaum argues in that paragraph that settlements are immoral because they deprive people of the opportunity to heal themselves by telling their story. That's not why settlements are immoral. They are immoral because they allow tortfeasors or wrong doers to escape public scrutiny. That is the value of having public trials: We get to expose people, companies, the government, to the world and show the wrong that they did. I know that sounds a lot like telling the story, but the difference is that I am not pretending that the telling of the story will work some magical healing on the victim. Rather I do think that public trials force tortfeasors and other wrong doers to accept responsibility and public approbation.

To be fair, Rosenbaum addresses this quite well. I could give another extended quote, but that wouldn't really serve any purpose. Furthermore, he is right to argue against settlements that involve secrecy and silencing the victim, and especially those settlements that are made without an admission of responsibility. So, I generally agree with Rosenbaum on this point, but have slight disagreements about the value of a public trial.

As for plea bargains, he again goes too far with his argument. Plea bargains are the criminal equivalent of civil settlements. I agree with Rosenbaum that there are certain problems with plea bargains generally, but those problems are largely the same problems with settlements. Specifically, plea bargains are designed to make "justice" efficient and as such plea bargains avoid trials which are useful for discovering what actually happened.

Rosenbaum goes too far with his argument because he imagines in the first place that criminal law is primarily concerned with crimes that result in some injury to a victim. This is manifestly not the case. The criminal justice system is overburdened in part because it is overly concerned with things like possession of marijuana or drunk driving where there is no actual victim to the crime. There is really no problem with a plea bargain in a PoM case. Unless there is a search issue (you know, one of those pesky technicalities), the defendant is going to be convicted. The only question is the sentence they will receive. In those sorts of cases, it is best to figure out a plea and move on with your life.

Thankfully victim crimes are relatively rare in our country. We could spend some more time focusing on them, though.

Ultimately, the remedy for both plea bargains and settlements is not to reform the legal system to allow for complaints about emotional hurts, but rather to increase the number of courts and judges that we have so that more can be exposed through trials. Judges can also limit the amount that litigants can hide in a settlement. A judge could demand that a corporation admit responsibility or refuse to ratify settlements that remain secret or gag the plaintiff.

Rosenbaum is rightly concerned about perjury. I don't have anything to add to his argument really. I just want to mention that in this chapter he is overly concerned with lying before the law and the system's failure to punish perjury, but he later decries specific provisions of law that are designed to reduce perjury. (I'm not finding them right now, but will get back to it.)

Finally, Rosenbaum refuses to acknowledge the utility of the rules of evidence and again goes off the deep end:

[E]vidence rule are frequently invoked to exclude testimony that is deemed "irrelevant," "immaterial," "not credible," "cumulative," or "hearsay." . . . These objections, aside from being rude and insulting, also limit the story and rob it of all the nuance and emotion of the human experience. What kind of legal system says to people testifying under oath, right in front of their faces, as if they are not there hearing the interruption, that their words are "irrelevant," or worse, "not credible"--simply not to be believed." (MoMJ at 108)

A pretty good one, I think. Like his complaint against Rule 12(b)(6), this problem with the rules of evidence is self-defeating. In the first place, let me say that I have never heard of a "not credible" objection. Rosenbaum is a professor at Columbia, or he was at the time of writing this book, and thus it is possible this is a local rule, but I doubt it. Credibility, after all, is a quintessential determination of the finder of fact and as such, I seriously doubt any objection on credibility grounds would ever be sustained. Nonetheless, even if we had Rosenbaum's ideal justice system--one in which emotional harms are addressed and not simply physical injuries--then we would still need to restrict witness narratives to relevant information. Supposing someone comes to court to tell a story about a betrayal that lead to a breach of contract, you wouldn't want them to talk about the dog they owned as a child. It would be irrelevant.

Rosenbaum also argues against the rule that prohibits the introduction of character evidence. I personally think that is a rather profoundly moral aspect of our legal system since it is designed to ensure that a person is punished for their acts on this specific occasion and that they won't be punished for those things that they have done in the past. Taken to the extreme position, this rule respects free will by ensuring that prior bad acts don't influence the jury.

Finally, Rosenbaum also makes a rather strong argument about zealous advocacy. Generally, I think he's right in that zealous advocacy requires the attorney to protect the client at the expense of other values. I'll have more to say about this later as it ties in fairly neatly to my critique of the law.

Is moral justice a myth? Part 1.

I am reading The Myth of Moral Justice by Thane Rosenbaum. I picked it up because I am still trying to refine my personal conception of justice. Justice is not something that I can often explain to other people.

Generally speaking, Rosenbaum argues that the law as it operates today is deeply immoral. I do find some aspects of the law to be immoral, and I often think that the law is amoral. After all, if Holmes was right in saying that justice was not done in courts, then the law will be amoral. Rosenbaum addresses some of these issues, but he doesn't approach it in the right way.

First, he is right to focus a lot on how the justice system fails to take an interest in truth. It is a fundamental fact of our court system that the court will not take account of all relevant information. Relevant hearsay will be excluded because it is unreliable. Incriminating evidence will be excluded if it is acquired through unconstitutional means. Moreover, the judge is not in charge of the trial--he has a responsibility only to manage the trial, not to direct it. The evidence brought before a jury or judge sitting as fact finder are the facts chosen by the attorneys of the litigants. As such, the court only "learns" those things that lawyers choose to tell it.

Civil law systems are admirable in this way. Generally speaking, civil law courts are more interested in "the truth," and will seek it out even when the lawyers refuse to present it.

The problem with Rosenbaum's book, however, is that he isn't interested in truth as facts or truth as it relates to reality. Instead, he is interested in emotional truth. That is the single biggest flaw in this book. He assumes, without argument, that morality is essentially a matter of emotions. That emotional harms are moral wrongs, and moral wrongs produce emotional harms. Furthermore, he assumes, again without argument, that religion provides moral guidance and therefore that morality is an issue of the spirit. As someone who isn't religious, a lot of this language bothers me, and detracts from his argument.

The second biggest flaw in his book is that he has developed a specific belief about how to remedy the emotional harms he sees in the world. This is not a book written by a philosopher. It is written by a novelist, and consequently, he believes that emotional harms are to be remedied by story telling. That sounds nice and it is undoubtedly true in many cases, but it doesn't account for a lot of human experience.

Let me discuss some examples:

Sometimes what's right is simply obvious, because its opposite is so clearly wrong--like failing to apologize or acknowledge someone else's pain. We were taught these basic moral lessons as children, and we have conveniently forgotten them as adults. The very things that we were properly warned not to do as children, like lying, blaming others, and failing to take personal responsibility for our actions, underlie the lawsuits that crowd our dockets and choke the decency out of our morally challenged legal system. (The Myth of Moral Justice, 2005, at 14-15.)

This is essentially true. One of my major problems with the legal system is my perception that the wrong kinds of cases end up in court. I believe that the law should operate for the people of this country, actual people, and not for the sole benefit of corporations. Corporations, however, by their nature are more likely to end up in court. And when they do, they tend to refuse responsibility for their actions. A friend of mine related the story of a deposition in which the attorneys representing a corporation were so belligerent with plaintiff that she broke down and cried. In this case, the corporation had admitted liability and was having a trial on the issue of damages. The attorneys' responsibility to their client was to ensure that the damages were as small as possible, and they were willing to act immorally to ensure they achieved their goal. A full admission and acceptance of responsibility would include paying damages, not berating a young woman who has already been injured by the company's negligence.

In some very basic ways, the legal system asks people to act in ways that are manifestly immoral. Rosenbaum takes this argument too far, though:

A technicality allows you to avoid responsibility because the conduct doesn't--literally or technically--rise to the level of an infraction, or something else intervenes to cancel it out. Technicalities also have a way of obliterating the story when a court of law gets overly bogged down in bureaucratic minutia and becomes more interested in going by route rather than doing what's right. . . . (MoMJ 115)

He goes on to discuss how 4th amendment violations can lead to letting criminals go free. That's all a very standard and very tired argument about criminal justice. What's going on in such cases, however, isn't a lack of moral justice. It is much more likely to be a specific belief overwhelming our sense of what justice should look like.

His point about technicalities is really dumb. He says that you can avoid responsibility based on a technicality because it doesn't rise to the level of an infraction. What he is arguing for is lowering legal standards so that people can be punished or liable or otherwise held accountable for things that aren't currently illegal. In his view, it seems, someone should be liable for their actions even if they don't fit the legal definition of negligence. After all, just because you technically didn't cause any damages, you can avoid responsibility for your actions.

Of course, that's the point of a lot of law, or to put it another way, Rosenbaum's point is self-defeating--it would create a feedback loop where responsibility is continually forced downward so that people are responsible for more and more. He makes this point himself:

Rule 12(b)(6) of the Federal Rules of Civil Procedure . . . demands that a case be dismissed as a matter of law, because of the plaintiff's failure to state a legal claim upon which relief can be granted--even if everything the plaintiff is alleging is true. Although the allegations are true, the claim may not actually violate the law, or is framed in a technically improper way. . . . To those without law degrees, and hopefully to some who have them, Rule 12(b)(6) naturally seems absurd. If the plaintiff is telling the truth, why shouldn't he be allowed to tell his story in front of a judge and jury? (MoMJ at 116-117)

This is patently stupid. No matter what you do, if you sit down and write a law, there are going to be minimum standards that have to be met in order for a violation of that law to occur. That is the nature of law. Rosenbaum's position would demand the destruction of law itself, because he would allow anyone to come to court for any reason whatsoever even if it doesn't violate any law. Rule 12(b)(6) may sometimes be used to get rid of improper claims, but it isn't in itself an example of how the law is immoral.

His point about constitutional technicalities also doesn't withstand criticism. Rosenbaum goes to great lengths to discuss how the exclusionary rule is immoral. But this is a failure in his conception of morality. As I pointed out above, he conceives morality primarily as a matter of emotional harms. Consequently, in his view, if an emotional harm goes unremedied because of an improper search or seizure, the law acts immorally. But there are plenty of immoral acts that have nothing to do with emotional harms. Honesty is one example: We are taught to be honest, but we often lie in order to protect a person's feelings. In that case we are being immoral but avoiding emotional harms.

Similarly, the constitution exists in part to protect us from an overbearing state--it is not about emotional harms. It is supposed to ensure that the government does not harm us without proper approval. I believe it is immoral for government officials to act in ways that violate the constitution. The constitution isn't a set of technicalities. It is a moral guide for the government. Is it more moral to violate the constitution in order to tell someone's story? The answer isn't clear, but Rosenbaum doesn't even consider the question.

That's enough for right now. Let me summarize by saying that Rosenbaum's argument focuses too much on emotional harms as the source of morality, i.e. he assumes that something is immoral when it produces an emotional harm but does not consider other forms of morality; relatedly, he assumes that morality is a product of religion and does not have other sources (this is a significant critique I want to discuss further); and finally that some of his arguments are inconsistent with any conception of law.

I am imagining this will be at least a three part series. In the next part, I want to discuss some of the things he gets right.

Required Reading: Torture and Democracy by Darius Rejali (Princeton University Press, 2007)

Cross posted at tpmcafe.

Earlier this week, I wrote a post detailing the techniques that John Yoo's recently declassified memorandum would allow military interrogators to use against detainees. Some of the more despicable methods included gouging out eyes, cutting off limbs, and pouring acid on the detainee. These methods are obvious, and that is perhaps why they are so despicable. The victims of these techniques would be permanently and horribly disfigured. If they survived the torture, they would be able to point to their bodies to explain what happened to them. That is why, even if an interrogator believed such things were legal, it is unlikely these techniques would be used.

Waterboarding and stress positions, however, are not likely to leave any lasting marks on detainees. "Waterboarding" is a form of choking with water in which a towel is forced into a detainee's mouth and water poured over the towel and into his or her throat. "Stress positions" can mean many different things including forced standing, lifting a person off the ground by handcuffs, or the use of restraints to keep a person in a specific position for a long period of time. These tortures are extremely painful and potentially life threatening, but unlike eye-gouging and acid, they leave no marks.

As Darius Rejali argues in his masterful book, Torture and Democracy, it is this fact that explains why modern democracies choose these specific tortures and why they are spreading around the world. The argument is simple: Democracies avoid scarring tortures because they are subject to public oversight. Furthermore, since the 1960s and 1970s, many authoritarian states have began adopting clean torture techniques because international organizations began documenting and exposing the use of scarring tortures.

It is not, however, a simple book. Rejali, an Iranian-American professor of political science at Reed College, is treading on dangerous ground. A work like this, if it is not handled well, is easily open to charges of bias from the right wing. One can easily imagine Bill O'Reilly accusing the author of 'blaming America first' and excusing the behavior of authoritarian regimes. Rejali ultimately succeeds because his book is even-handed, encyclopedic, thoroughly documented, and carefully reasoned.

Torture and Democracy can be split into two equally significant parts. In the first part, Rejali recounts the history of modern torture, and in the second, he discusses the continued use of torture and contemporary debates. Accurate histories allow us the opportunity to think clearly. Without knowing where specific tortures come from, how the tortures have been used, and how the techniques have spread, it is impossible to escape the dangerously mistaken folk histories that often dominate our public discourse on torture.

It is not the case, for example, that modern torture techniques originated with the Nazis. As Rejali documents, the Nazi regime had little use for clean techniques as its torturers were not likely to face prosecution. As a result, Nazi torturers often whipped, beat, and choked their victims. Similarly, the Soviets had no special techniques. Despite popular beliefs, Pavlov played no role in securing confessions for Stalin's show trials. Instead, the Soviets relied on methods that were well known to and used by police in the United States until the 1940s.

Specifically, Stalin's torturers relied on continuous questioning, sleep deprivation, bright lights, forced standing and forced sitting, clean beatings, and hot and cold rooms. The use of these clean techniques by the Soviet Union is consistent with Rejali's hypothesis about the public oversight of torture in democracies. The show trials were designed for international consumption, and to be effective propaganda, it was necessary that the defendants appeared to be confessing voluntarily. Evidence of torture would have harmed the credibility of the trials.

Furthermore, these and many other clean tortures did not originate with the Soviets or with the Nazis. Rather, many contemporary clean tortures are traceable to British military punishments and the practices of American slave traders. Slave traders had strong incentive to avoid scarring slaves in that scars might indicate to a potential buy that the slave was a disciplinary problem.

Despite documenting that many clean tortures originated with democracies, Rejali is very careful to limit the scope of this history. He strongly rejects the hypothesis advanced by Noam Chomsky and others which maintains that the United States acted as a universal distributor of torture techniques during the 20th century. Chomsky believes that the United States trained authoritarian regimes to torture, especially in Latin America, and consequently if it were not for the United States, there would be significantly less torture in world. Rejali examines and rejects this hypothesis because it is not supported by the evidence. There is no uniformity in the techniques used by the countries that the United States is supposed to have trained, and in many cases the techniques used by those countries have histories that predate U.S. training.

As he proceeds, Rejali continually clears away myths, folk histories, and baseless hypotheses. Electroconvulsive therapy is not related to electrotorture. No one was thrown from a helicopter in Vietnam. Torture cannot be conducted scientifically. It will always remain low tech. There are no "truth serums." This is the value of an accurate history. Torture is widely and rightly believed to be entirely unacceptable. It has thus become a taboo shrouded in myth and popular misconceptions. Those misconceptions grow as they are retold in movies and television which relish in violating taboos, and as they are passed down by interrogators and torturers. We must always be careful about the stories we tell ourselves.

Of course much of this does not touch on the most important issue: Does torture work? Rejali addresses this in the second part of his book and again approaches it with particular insight. This question--"Does it work?"--is behind the continued misunderstanding of torture in the public mind and the use of euphemistic language by the press. It is this question that turns torture into "enhanced" or "aggressive" interrogation. If torture works, then its use cannot be condemned entirely--if it works, it belongs on the continuum of acceptable methods of interrogation.

Rejali finds that torture does not work, but again, he avoids simple answers. Part of the problem with our public discourse on torture is an inability to get beyond theoretical moral arguments. One side argues that torture is never right. The other side argues that it might be necessary to save lives. One side adopts a deontological view, the other reasons by utility, and there is no way to bridge their theories. This is about as much as can be contained in a typical cable news segment. Rejali cuts through this morass by relying instead on social science and concrete evidence.

As Rejali argues, it is not a simple matter of whether torture produces intelligence or not. The issue is whether it is more effective than other means. The list of possible intelligence gathering techniques is not simply torture or no torture. Rather, it includes public cooperation, informants, and traditional investigative work such as examining documents, forensic evidence and the use of surveillance. Importantly, Rejali finds that torture is remarkably worse than these methods and because of its propensity for producing false information, torture is very likely to be worse than doing nothing at all.

The problem with the information produced by torture is that there is no way to know if it is reliable. A knowledgeable detainee will provide false information in order to deceive the authorities while innocent detainees will provide any information whatsoever in order to escape the torture. Interrogators have no effective means of distinguishing deceitful or false information from true information. Ultimately, any intelligence gained by torture must be independently verified in order to be of any use. In that case, it would be much more efficient to get the information from the independent sources in the first place. In this way, torture is an extraordinarily bad way of gaining information.

Perhaps as important as explaining why torture does not work, Rejali details how torture leads to the degradation of intelligence agencies' ability to gather information through traditional means. When information gather by torture is presumed to be accurate--when it is thought that "torture works"--agencies rely less on investigation and public cooperation and these skills atrophy. It seems then that torture is both a symptom and a cause of intelligence failure. It is often used when agencies are unwilling to use other techniques and it ultimately makes them incapable of using those techniques.

Furthermore, to oversimplify, Rejali concludes that any acceptance of torture leads to a slippery slope where the use of torture naturally expands and overwhelms intelligence gathering. Crucially, he explains why the slope is slippery--he explains why torturers cannot distinguish between different degrees of torture. I could not do justice to this argument and his evidence in this post. You will have to read the book.

Rejali, however, does not dodge moral arguments. Instead he subjects them to cool empirical tests. For example, he details the origins of the "ticking time bomb" argument in France's Algerian War. He shows how it's extensive rhetorical use by Israeli politicians lead to the torture of an Israeli fighter pilot captured by Lebanon in the 1990s. According to the Lebanese authorities, the pilot was a ticking time bomb. Finally, he shows the argument to be bankrupt: Following the attacks on the London Underground in 2005, the final unexploded bomb--an actual ticking bomb--was found through public cooperation and detective work, not torture.

Again, this is the ultimate value of this work. It moves us beyond simplistic platitudes, unproven assumptions, false beliefs, and theoretical arguments. If we are to overcome the Bush Era, we must clear our heads; we must rely on facts, science, and reason. We must banish not just our fears but the rhetoric of fear. Darius Rejali's work is an excellent step in that direction. It is required reading for conscientious citizens.

---------------------

Post Script: In his otherwise excellent article, Phillipe Sands describes waterboarding as the "the application of a wet towel and water to induce the perception of drowning." This is exactly the sort of language I wanted to address in my earlier post this week. Fundamentally, the description is accurate, but its construction hides what we are really talking about. "Application of a wet towel" does not denote the force used to stuff the towel in a person's mouth. Saying that the use of water "induces the perception of drowning" is to refuse to face the facts. People who are choked with water in this manner have the perception of drowning because they are in fact drowning.

This phrasing suggest that somehow their perception is false, and that because it is false the technique is mental. This is an important lesson: Drowning is painful, and pain is a mental phenomenon. By the logic of this phrasing, any torture, clean or scarring, should not concern us because all it does is produce pain. But it is that pain that is essential to torture; the pain is the reason we call it torture--it is the central feature of torture. We cannot afford to deceive ourselves in this way.

Aristotle says George Lucas can suck it.

I started reading James Monaco's How to Read Film a while back but go sidetracked by the bar exam. Monaco, however, includes a discussion on the nature of art and theories of aesthetics in order to make the point that film is an art. Monaco starts with Aristotle's Poetics, and since I have a copy of that sitting on my shelf, I decided to give it a quick read before continuing with Monaco's book.

It is somewhat surprising how modern and relevant Poetics is. As a theory, it is not spectacular, but that is in large part because Aristotle was writing under certain cultural assumptions that no longer hold true, or are only partially true. For example, Aristotle wrote:

The perfect Plot, accordingly, must have a single, and not a double issue; the change in the hero's fortunes must be not from misery to happiness, but on the contrary from happiness to misery; and the cause of it must lie not in any depravity, but in some great error on his part.

This is pretty specific and contrary to a lot of our current cultural assumptions. We in fact like movies where people move from misery to happiness. We like to say they evidence a "triumph of the human spirit." And furthermore, we often like movies about depraved characters. The prime example of this is would be There Will Be Blood, which was critically acclaimed and essentially a study of an evil character.

So, Aristotle's theory isn't perfect, but he still makes a lot of excellent points that remain relevant today. For example, he argues that plots should be tightly constructed:

The truth is that, just as in the other imitative arts one imitation is always of one thing, so in poetry the story as imitation of action, must represent one action, a complete whole, with its several incidents so closely connected that the transposal or withdrawal of any one of them will disjoin and dislocate the whole. For that which makes no perceptible difference by its presence or absence is no real part of the whole.

And he says that episodic plots are to be avoided:

Of simple Plots and actions the episodic are the worst. I call a Plot episodic when there is neither probability nor necessity in the sequence of its episodes. Actions of this sort bad poets construct through their own fault, and good ones on account of the players. His work being for public performance, a good poet often stretches out a plot beyond its capabilities, and is thus obliged to twist the sequence of incident.

My favorite part, however, is Aristotle's argument about the proper use of "Spectacle." Simply put the Spectacle is the "stage-appearance of the actors." The point of a tragedy, in Aristotle's view is to make the audience feel fear and pity for main character and the events in the drama. He writes:

The tragic fear and pity may be aroused by the Spectacle; but they may also be aroused by the very structure and incidents of the play--which is the better way and shows the better poet. The Plot in fact should be so framed that, even without seeing the things take place, he who simply hears the account of them shall be filled with horror and pity at the incidents; which is just the effect that the mere recital of Oedipus would have on one. To produce this same effect by means of the Spectacle is less artistic, and requires extraneous aid. Those, however, who make use of the Spectacle to put before us that which is merely monstrous and not productive of fear, are wholly out of touch with Tragedy.

Suck it George Lucas.

Is This Funny? #1: Humiliation

Issue: Can we say that humiliation is funny?

Example: ABC's new series Eli Stone.

Discussion: This entire show bases it's supposed humor on humiliating its titular character. You see, he suffers from very realistic hallucinations that interrupt his normal life. He becomes so involved in the hallucinations that he will do things like dive under desks at inopportune times or start singing and dancing in public. Suddenly, he will open his eyes only to see many people staring at him. Oh, isn't it so funny?

No, actually, it's not. These sorts of jokes only work on the assumption that there are rules of acceptable behavior that generally should not be violated, and when they are violated, the person in question is deserving of ridicule. That is simply not the case. There are no oppressive, puritan, middle class standards of behavior by which we are all bound. To the extent that anything of that sort ever existed, it has been repeatedly attacked and destroyed by punk music, independent films, and social satire of every sort. That is in fact the point of satire: it punctures and destroys the extraneous and oppressive rules of society.

Conclusion: Humiliation is not funny. I submit that Eli Stone should be immediately canceled for crimes against comedy.

Purposes

Having a discussion with friends last night about life and art which has lead me to some interesting points and conclusions.

In the course of the conversation, I mentioned that there was a girl I went to college with who I came to think of as a horrible person largely because she was extremely self-centered, but also because her ultimate dream in life was to get married and have kids. In response, one of my friends made the fair point that there isn't really wrong with that so long as the person has chosen that life.

Another friend argued, however, that there are some people who never aspire to even that but instead want to experience life simply by traveling, watching movies, listening to music, and otherwise taking in the world. It's important that this is described as "taking in" the world for that is what I maintained: that such a life cannot be as highly valued as those people would want because in fact all they will have done with their life is consume and ultimately, they will have nothing to say for themselves. Furthermore, that you cannot even say that you have experienced life to its fullest if you never act, do, make, create, or whatever synonym you want to use.

So, the question becomes, if that is the case, what is the purpose of art. If in fact it is basically or essentially empty to consume art, then what purpose can it have. This is not to denigrate the value of art directly, since art can have a large impact on our lives. It can produce catharsis, it can change our mood, or console our melancholy. But after the immediate perception, its effects seem to just float away.

One friend made the cogent and intelligent point that in the first place, the purpose of art is for the artist. It is for the artist to act, do, make, or create. In the second place, from the audience's standpoint, it is there for consumption my friend maintained.

And here's the big conclusion: The reason that a life spend consuming the world is ultimately empty, even if it's spent consuming the greatest works of art in the world, is that such a life would never put the message into practice. If art is in some way going to make us better people, we can't be better people without taking some action. A life spent in consumption is one without action, and being a good person requires getting out of your own head and engaging with the world.

Sartre bites everyone in the ass.

A Quick Note about FAMILY GUY

I'm not a huge Family Guy fan largely because I don't think its pop culture reference humor is very funny. They occasionally get a good joke out of a random reference to an obscure movie from the 1980's, but they just as often misfire. In a 22 minute episode, the references can leave me feeling bored and frustrated. "You want me to laugh at this?" I angrily ask in my mind.

But when they do story related humor or make up their own jokes, they still get a good one in there sometimes. Case in point is this scene where Peter, Bryan, Chris, and Stewie all drink ipecac and try to see who can hold out the longest. Yes, I hear you saying, it is just bodily function humor. But it's still damn funny.

Cupcakes

A few weeks back, I went to a movie with some friends, but we got there late and decided to catch a later show instead of going in late. To pass the time, we decided to get a cup of coffee. This plan was interrupted when we walked past a little shop with a sign that said simply, "Georgetown Cupcake." A line of 20 or 30 people stretched out of the shop and up the street, and on this basis my friends decided they wanted to get cupcakes. The conversation went something like this:

Friend: Ooooh, cupcakes, let's go there.

Me: Really? You feel like a cupcake?

Friend: Yeah, cupcakes sound good!

Me: And you want to go stand in that line?

Friend: Yeah, it has to be good if it has a line like that!

Me: So you really don't know anything about this place?

Friend: Nope, never even heard of it before.

Me: But you're willing to stand in a line just because all those other people are standing in line?

Friend: Yeah!!!

Me: You realize that this place is just exploiting twenty-something nostalgia for childhood.

Friend: I love the marketing!

And this is what really bothered me. I maintained that people were being exploited through a specific emotional manipulation and my friend said that he loved it. Since I am not good at letting things go, this developed into a bigger argument. My position was that we shouldn't let ourselves fall prey to such emotional manipulation and his position was that everything attempts to exploit your emotions.

This exploitation of twenty-something nostalgia for childhood is extremely prevalent in our society right now, and I think we need to be on guard against it. It is the reason that Michael Bay got to make Transformers and Broken Lizard got to make The Dukes of Hazzard. Both movies have nothing to recommend them except the fact that they are recognizable franchises that are well known to men in the 18-29 demographic. The other thing that both have in common is that in retrospect both series have elements that are risible. Transformers was originally part of Hasbro's Saturday morning cartoon lineup, which was probably the best toy marketing scheme ever devised. The Dukes of Hazzard is a crazy story about two Southern brothers who use their stock car to escape inept police officers while stopping the evil plans of the short and fat Boss Hogg.

It's their ridiculousness that makes these sorts of aging cultural artifacts so central to "college humor," and even to the website of the same name. That website and the associated "college" culture is continually fascinated by things like ninjas and pirates because ninjas and pirates are basically absurd myths that we tell children. By talking about ninjas or Chuck Norris or The Dukes of Hazzard, people get to have two simultaneous reactions. First, they get to recognize the absurdity of these stories, to laugh at and make fun of them. But they also get to remember what it was like to be a child, to relive some part of their childhood for a few moments even as they make fun of it. It's a combination of mocking and sincere appreciation. I have to credit this popmatters article for making a similar point and influencing my thinking.

This is a particularly easy way to exploit people. For one thing, it is basically empty. This sort of humor doesn't require any originality or creative action. All one has to do is to point at some old TV show and note its particular stupidity. It doesn't increase one's appreciation of the old show, or or bring any insight into ninjas. But as a two for one, it might even be called efficient.

My disgust with these sorts of things is related to my hatred for affectation. People often go out of their way to merely to create an specific image for themselves, usually to find approval from a group. People do all kinds of things for show. They drink wine in order to appear sophisticated when they would rather have a shot of whiskey. They buy ugly clothes because everyone says the clothes are "cool." They buy expensive cars to keep up with the Joneses.

There are many things that bother me about affectations, but at the heart of it is that people choose to waste energy on activities and behaviors that are essentially empty. The wine snob is not a better person than the beer slob. In the mind of the wine snob, he is the better person because he appreciates something finer than other people. Obviously, it is often a sign of class bias since people try to emulate the upper classes as if wealth makes someone good and imitation will bring the same benefits.

Connoisseurship is empty because imparts no meaning. A good wine can give us some momentary pleasure, and it is not wrong to seek out that pleasure, but drinking good wine to the extent it is about the quality of the wine doesn't tell us anything. Unlike art, literature, science, or philosophy it doesn't inform the human experience. It makes no argument.

Most affectations produce the same result. Wearing a specific garment won't improve one's life for the same reason that traveling is often disappointing: one always travels with oneself and no matter what clothes a man wears, it's still him underneath.

So, we should also be particularly wary of appeals to status and connoisseurship since these things are as empty as appeals to childhood nostalgia.

Cupcake shops make these appeals. Georgetown Cupcake--note the specific use of the singular--doesn't really offer anything to its patrons beside a brief moment to remember eating cupcakes in grade school at everyone's birthday. It sells cupcakes for exorbitant amounts and tries to convince its patrons that they are getting a special product--both appeals to status. In short, they are selling a product based largely on image rather than its quality or inherent value.

And this is where my friend and I disagreed. I maintain that we shouldn't allow ourselves to be susceptible to these sorts of appeals; that more often than not falling prey to them will lighten our wallet without an sufficient return in value. He, however, argued that every thing is sold to us in the same way. The conversation went something like this:

Me: So, was it worth it? Was it worth standing in that line for extremely expensive but mediocre cupcakes?

Friend: Oh come on, they were pretty good.

Me: They were ok, but we didn't eat them because they were good, we ate them because you bought into the appeal to nostalgia and status.

Friend: So what?

Me: I just don't like being sold something.

Friend: Ok, but you can say that about anything. Aren't you the guy who sits around Starbucks?

Me: Well, I go to Starbucks for internet access, not because I think they make a great cup of coffee, and certainly not because I'm trying to prove that I like good coffee.

It should be noted that there are still some people out there who think that Starbucks represents a pinnacle of coffee snobbery. But can it be said that every thing is just an appeal to snobbery?

That is something I struggle with, but ultimately I don't think so. My natural response is problematic. I want to say in the first instance that there are things that I genuinely like, and because I genuinely like them, I am not being sold something that isn’t worth it. In other words, in specific instances, I find the value of what I receive meets or exceeds the value of what I offer in exchange; and also that the object merits the quality that is attributed to it. That cannot be the case when something is sold based on status or nostalgia because these things neither add value to the object nor represent some value in the object.. They are qualities external to the object that may but probably won’t be realized—it’s the sizzle and not the steak.

However, it is a subjective test. Maybe the subjectivity implies that the object in question cannot be said to be appreciated for its inherent properties. We can improve the test a little bit by asking how someone is selling something rather than just why it appeals to us. It doesn’t remove the all the subjectivity, but it might improve the accuracy.

But perhaps I am a sucker. Perhaps I have convinced myself that I genuinely like things when without their sales pitch, I wouldn’t otherwise like. Or perhaps there are some things that I like that cannot be appreciated without a connected but external quality. That may be true, but I don’t see how that argument leads anywhere. After all, I have no reason to distrust myself about how genuinely I like the things that I like.

And I don’t see that as a problem. We are responsible for our actions and must find the right reasons and motivations for selecting a specific action. Ultimately, my argument is not about what how other people ought to market their cupcakes or what movies should be made. It’s about how I should act when presented with these things. In short, we shouldn’t let ourselves be susceptible to arguments and marketing that makes appeals that service our egos.

A few thoughts on Atonement

Watched Atonement last night and I understand why it is an Oscar nominee. Every year, the Academy is virtually obligated to nominate some epic period piece, in recent years often about World War II. This year, it's Atonement.

Don't get me wrong. It was a fine film. Well made. Well acted. But it's not in the same league as No Country for Old Men, which is my personal favorite from this year.

I read a review of Atonement earlier this year which said something about how the character very nearly achieves something like actual atonement. The character in question is a girl, Briony Tallis, who sends a man to prison by providing false testimony. As one might imagine, this has a detrimental effect on his life and the life of Briony's sister who was in love with the man.

The movie has been out for a while, so I am going to discuss the ending. So, fair warning: spoilers ahead.

Throughout the movie, Briony is shown writing. At the beginning of the movie, it's a play, in the middle it's a novel. At the end, she is discussing a novelization of the story of the movie. She is an old woman and is dying. So, she finally completes an autobiographical novel where she tells the whole story. Why she lied, how she lied, and how she came to realize the full import of her actions. But it's a novel because she changes the ending. Both her sister and the man she sent to prison died in World War II, and thus she has been unable to remedy her actions. For the novel, she changes the ending of the story so that her sister and the man both live and are reunited--so that at least in her story they have the years of happiness that they deserved.

Writing out that description, it is quite a bit more powerful than what I experienced while watching it in the theater. (That may be attributable to the single worst audience I've ever sat with.) I was going to complain that writing a fictional ending to a real story doesn't really do much to atone for the harm that she caused as a child. But for an old woman, dying, that is the best she can offer. Unfortunately, we don't know how she spent the rest of her life. We know that she spent some time working as a nurse and skipped going to college as some form of personal flagellation, but that's about it. It would have been nice to know how the rest of her life was affected.

Anyway, decent flick. Worth a rental.

The Anti-Theory Theory

As I wrote below, I'm not the type of person who really wants to get deeply involved in the "mythology" of Lost. I don't want to try to figure out all the little clues and I am not trying to divine the ultimate explanation for what is happening in the show. In fact, I tend to think that looking for that sort of explanation can hurt one's appreciation of the show. But with a show so mysterious I think it is reasonable to expect some bigger issues will be resolved as the show proceeds to its conclusion in three seasons.

So, I was frustrated last week when the show deliberately brought up the issue of the smoke monster only to quickly refuse to explain it. When I mentioned this over on the AV Club, several people told me that I need to accept that some things won't be explained and that I need to simply accept that Lost will proceed on it's own terms. I was told this by people who view the show in exactly the way I think it shouldn't be viewed--people who are deeply involved in trying to figure out all the little mysteries that can detract from the larger story it has to tell.

To me the discussion just begged the question of what accepting Lost on it's own terms would in fact mean. Apparently, some people have theorized that the island is located under the arctic ice cap, or under Antarctica, or it's Atlantis. Other people think that the people on the island are time travellers, or that time is slower on the island than elsewhere. Others think that the all the characters are in fact dead and the island represents Purgatory. Still others think that the crash and subsequent events were all orchestrated by the parents of the people on the island. Of course it goes on and I hope that actually stating these things shows why I think it is a mistake to look for these sorts of explanations in the show--they are all ridiculous.

Accepting Lost on its own terms requires us to refuse to look for theories like this. If we are to accept the story, we should accept that it is a strange tropical island in the South Pacific, that the island has some personality probably in Jacob; that the island has some sort of healing aura; that some people are able to have prophetic visions; and that the island has some ability to make certain dreams or wishes materialize. Importantly, accepting Lost would mean accepting these things without other explanations. It may simply be that within the show all these things are true without there being some grand explanation of time travel or Atlantis or big conspiracies.

Those sorts of explanations are deeply ingrained in the sci-fi tradition and Lost may simply be creating it's own stories independent of those sorts of explanations. Battlestar Galactica operates in a similar way. The Cylons are robots but they are also in some way biological and potentially capable of reproducing with human beings. If you try to express that to other people, it becomes very hard to explain since people tend to use categories that they are used to and comfortable with. Battlestar Galactica is asking us to accept that some cylons are both robotic and biological, and that transcends our preexisting categories.

Lost is doing the same thing, and to accept it on it's own terms is to accept that many of the categories existing in the sci-fi tradition probably have no utility within the framework of the show. And that is my anti-theory theory: The show will explain itself and will not use time travel, Atlantis, odd locations, or anything along those lines to create an ultimate explanation.

Stop looking for theories and your enjoyment of the show will increase.

National Primary

What kind of blogger would I be if I didn't have something to say about Super Tuesday? Probably a better one.

Super Tuesday was roundly and repeatedly described as the closest thing we have ever had to a national primary day because Republicans and Democrats were both holding contests in more than 20 states. We know now that it hasn't settled anything, and it doesn't seem that it was a truly representative contest. Is it possible to say, based on the results of Tuesday's elections, that we know what the country as a whole wants? Simply, no.

We won't ever have a national primary unless there is a nationwide electoral process--a process that is not dependent on state divisions and subdivisions for apportioning votes. A primary cannot be a national process unless everyone is voting in the same election, and as long as Californians are voting in a California primary, it's not a national process.

A national process would be something like the French electoral system wherein all the presidential candidates compete in a two round election. If any candidate wins 50% +1 in the first election, he or she is elected president. If no one gets a majority, then the top two candidates compete in a second election a few months later in order to select one. With only two on the ballot, this process ensures that the president is elected with majority support from the population.

In this country, it would mean that all the Republicans and Democrats would compete with each other in a single vote. There would not be separate Republican primaries and Democratic primaries, but a single vote with everyone on the ballot. Then, assuming the vote is split in several ways, the top two candidates would compete for the presidency in a later general election.

I have thought for a long time that the French model was a better system than what we use. Our system is based on a fractured electorate voting in different contests at different times. It gives disproportional power to small states that vote early and discounts the votes of states that hold later primaries. Furthermore, in the general election, it is often the case that the President is elected with a minority of votes. Not just George Bush in 2000, but Bill Clinton in both 1996 and 1992 became president without having a majority of Americans supporting him. We can't say that simple majority rule is the sufficient for democracy, but it is necessary for democracy. It is anti-democratic to elect a president with less than 50% of the vote.

This primary season has been wildly different from the past several cycles. Thus, I have come to realize that the French double vote system is a product of their broader political system and may not be easily grafted on to our system.

For one, the French system does not usually operate to select party representatives where as out primary system is designed to do just that. The French two round system by contrast operates to winnow the field of parties who have a chance at winning. There are three to four viable parties in France and preselected candidates from those parties compete in the first round of voting. One or two are typically knocked out
and the other parties compete for the endorsement of the eliminated parties.

With just two parties, we would have three or four Democrats competing with three or four Republicans. Then the candidates eliminated in the first round would just be expected to back the candidate from their party. So, in this way, a two round election wouldn't settle anything in the first round in our system. And without multiple parties, we might not benefit from having this sort of primary.

Second, as this primary season has shown, there is some value in having a series of elections that allow lesser known candidates to build support over time. If we had a single national primary, I have no doubt that Hillary Clinton and Rudy Guiliani would be the nominees from each party. From my perspective, it is a good thing for a solid candidate to be able to build support over time through a series of small elections. A national primary would effectively eliminate that possibility and would instead mean that national name recognition would be the essential quality for a successful candidacy.

I still think the French system is a good idea, however, because it ensures that the President has a majority support in the electorate. So, now there are two questions. First, since there is no need to reinvent the wheel, are there small ways to change our system so that a two round election could be used and combined with the advantages of our primary season? Second, if that is not possible, what is the best way to ensure that we can get the benefits of the French system without actually using it?

I'm pretty much going to leave it there for now so that I have more time to think about those questions. The short answer to the first question is that we might need to change party organization and regulation so that parties are prepared to have an early election and so that third parties can viably contest a national election. The short answer of the second question is that it is always possible to restrict the ballot so that voters are forced to choose between no more than two candidates and thus produce a majority.

Expanding on that

Last night I watched The King of Kong: A Fistful of Quarters and Once; two movies that allow me to expand on some thoughts from the last post.

The King of Kong is a documentary about an informal competition between two men to get the highest score on Donkey Kong. The original record was set in 1983 by Billy Mitchell and stood for over 20 years before a serious challenger came along. The movie follows Steve Wiebe, the challenger, who sets a new record at home only to have his score rejected by a refereeing organization because they think the motherboard in his arcade cabinet had been tampered with. Weibe subsequently beats the old record again in public on a verified machine, but is immediately upstaged by Mitchell who sent his own questionable video tape to the referees. When the Guinness Book of World Records decides to include the highest score on Donkey Kong in their next book, Wiebe tries again to beat the score in public.

I really enjoyed this movie. It follows a fascinating cast of characters through some serious conflict. The fact that the conflict is about video games adds to the movie rather than detracting. The men and women involved in this movie care about their high scores not simply as a few hours of entertainment but as world records worthy of comparison to the 100 meter dash and the marathon. And if you watch the movie, you will find there is little reason to disagree. High scores are serious business.

Once is billed as a modern day musical. The main character is a nameless street musician. He survives by fixing vacuum cleaners but prefers to spend his time playing standards for passersby. At night when the crowds are smaller, he plays his own music. This attracts the attention of a nameless girl; a Czech immigrant who plays the piano. They spend a week together sharing music. I also really enjoyed this movie. It is about being lonely and finding companionship. It is about the process of creating music and how music plays a role in our life.

What really surprised me about Once was that it was shot in a documentary style. The director and producers of this movie want to call it a musical, but it does not function like most musicals. In the standard musical, Rent for example, the characters go through dialog and then burst into songs at dramatic moments. The songs may emphasize particular points but are often self contained and in so way independent of the drama going on. In other words, the standard musical is supposed to present a story and a set of songs that are together but that are not necessarily related in any important way.

Once, however, presents the music as an integral part of the story. The songs that the characters sing are not merely entertaining props to between story elements but are creations of the characters and an essential part of the story. That is how Once manages to survive being shot in a documentary style. It is presented as if it is documenting the actions of these characters and their creation of the music.

In my last post I stated tried to argue that television has improved in part because it is trying harder to convince the audience that a show is something that is happening. Lost achieves this by shooting outside and on location even though it uses traditional film techniques. Other shows such as The Office achieve this by shooting in a documentary style. So, what is a documentary style and why can it help in fictional storytelling?

Of course, in actual documentaries such as The King of Kong, the story is told in a documentary style. At first this means camera work that is occasionally unsteady. Unsteady camera work is the result of two things: lower production values and the act of recording events as they happen. Almost no documentaries, if any at all, are shot on film by professional camera operators for the simple reason that it would be extremely expensive to do so. More importantly, however, a camera operator in a documentary will not be able to perfectly anticipate how events will play out. A sudden move of the camera may be necessary to capture an unexpected event or to react to a person saying something that is potentially important.

Second, documentaries are shot at a distance from the immediate subject of the film. In trying to document some event, the camera crew must provide some distance to the people who are participating in the event. This is done, I assume, in order to allow the people the opportunity to act as they would if the documentary crew were not there, and thus provide a more 'true' representation of what happened. In practice this means that while shooting outside, the environment is allowed to intrude into the movie--people, noises, and some events that are external to the movie are often captured by the camera.

In interior scenes, documentaries are often shot from a perspective that is internal to the action such that events are perceived to be happening around the camera and not merely in front of it. Again, this is a result of being at actual locations where people are going about business that is independent of the film.

Third, since documentaries are designed to capture events as they happen, the filmmakers rely on ambient lighting and do not provide makeup or costumes to the subjects. The subjects are to be presented in a naturalistic manner.

Finally, documentaries often use direct interviews with the subjects to explain events in the film.
Three of these elements of documentaries were used successfully in Once. The camera work was occasionally unsteady, which suggested the camera was reacting to events as they happened. The subjects were often shot at a distance with intruding extras and external events, and from within the action in interior shots. The filmmakers effectively used ambient lighting and were careful to present the characters in normal clothing and makeup. They did not use interviews with the characters in the way that The Office does to complete the illusion of a documentary.

I wouldn't be so stupid as to claim that a documentary style is always a good way to go with a fictional story, but it does have some advantages. The above elements of documentary style filmmaking are the natural result of documentaries. The camera work, space, naturalistic presentation of the subjects and use of ambient lighting is the result of documentary filmmaking. As the audience we have learned to interpret these elements are reflecting actual events. Thus, in a very simple manner, fictional films shot in a documentary style use these elements as cues to the audience that what they are watching is something that actually happened. The elements of documentaries are used to reinforce the illusion of the scripted story and that can help us to suspend our disbelief. This was all very effective in Once.

It can help, but not always. Cloverfield stands as an obvious counterpoint to what I have just said. Cloverfield was shot on film by a professional camera crew. The professional crew was told to shoot it in a way that seemed amateurish, because the character who was supposed to be using the camera was not supposed to be good with it. But in Cloverfield, the unsteady camera work often failed to reinforce the reality of the story, because it was both too professional and too amateurish.

One on hand, the camera-character was often unable to keep the horizon in the most simple circumstances. Thus, we got dramatically angled shots of other characters even when there was no reason for the character holding the camera to hold it at a severe angle. Rather than suggesting amateurishness, it suggested a professional trying to emulate an amateur, which is what is exactly what happened.

On the other hand, when extreme circumstances did occur in the film, the camera-character was able to keep filming. For example, the camera successfully follows the other characters as they run across a street just a few yards from the gigantic monster attacking the city. With the expansion of home video TV shows, especially those featuring videos of extreme sports, videos of criminals, and videos of simply stupid behavior, I have come to expect a person operating a camcorder to drop the camera when some extreme event happens. The fact that the camera-character in Cloverfield was able to keep filming while running from a giant monster again served to reinforce the fact that the movie was being shot by a professional cameraman.

So, it is not simply a matter of using a documentary style, but as with everything else, it matters how it is done. Cloverfield failed where Once succeeded.

Hooray for Scripted Programming

Lost premiered last night, and I am glad it's back. The writer's strike is going to be hard to get through so long as the networks keep putting crap like celebrity Apprentice on the air. Lost is arguably the show that started the recent renaissance in quality television, and that renaissance is part of the reason I have begun to think that TV should be counted among the arts as film is. When there is no significant qualitative difference between the two media, they ought to be susceptible to the same sort of criticism.

I don't want to worry about at right now, however. Instead I simply want to argue that one doesn't have to be a huge Lost nerd to watch and enjoy the show. Lost is known for being a long running mystery. The main characters are survivors of a plane crash on a tropical island who are confronted by mystical experiences, tangential connections, monsters made of smoke, and the unexplained existence of a group of menacing "Others." The series essentially begs the question, "what the hell is happening here?"

The producers of the show occasionally provide obscure clues and have intentionally left many questions unanswered. Building the mystery around the show has in no small part helped to create a strong base of fans who tune in each week to scrutinize every episode for any new information that will shed light on the story.

Stop and think about that for a second. It is remarkable in itself that a television show can create such a devoted fan base. The fans aren't tuning in simply because the show is well written or because of good acting or because of any of the other technical areas in which Lost excels. These fans watch the show because they have become invested in the characters and the plot. That alone is a proxy for the quality of the show. It may not be a precise proxy since people often become devoted fans of programs that are of lower quality, but it doesn't happen very often.

It can be tempting to think that the fans of the show ought to be dismissed out of hand for being sci-fi nerds and television geeks. After all, they are seriously invested in a fictional show that is about things that could never happen. But that would not be fair. The goal of drama ought to be to bring the audience into the world of the characters so that the audience has some stake in the final outcome. When the audience has a stake in the outcome, the drama can actually matter. It is only when a play, movie, or show is very good that we actually care about the characters and their lives.

If you are to like any show or movie at all, I think you have to be ready to believe that the characters have lives--that they aren't simply actors playing roles before a camera. In other words, that is the minimum suspension of disbelief necessary for a drama to succeed. A recent failure on this standard for me was Marie Antoinette with Kirsten Dunst. While watching that movie I had the distinct awareness that I was watching something that was being filmed. Most of the time I can watch a movie as something that is happening and not something that has been staged or filmed, but I couldn't get past that roadblock with Marie Antoinette. And I simply didn't enjoy it.

When it comes to Lost, I am able to suspend my disbelief that minimal amount. Again, I think this is remarkable in a television program For most of television's history, programs have been obviously staged. Your typical sitcom--Friends, Seinfeld, The Cosby Show, all the way back to The Dick Van Dyke Show--is shot on a static stage. Three cameras are placed in specific locations before the stage in order to provide the necessary variety of angles and the actors simply perform a play before the cameras. While that can work well enough, it also degrades the reality of the shows. In the past few years we have seen the proliferation of single camera sitcoms such as Sports Night and sitcoms that aren't shot on traditional soundstages such as The Office, 30 Rock, and My Name is Earl. Most of the time I would much rather watch those shows than the traditional three camera sitcom.

Lost does the same thing. It takes the drama out of a sound stage and puts it on a tropical island. Yes, there are indoor and sound stage scenes, but the show is a large improvement for the simple reason that it shoots on location so much. Almost all the other major dramas from the past several years have gone in the same direction. The Sopranos shot on location in New Jersey much of the time, and The Wire has made Baltimore into a character.

If it is possible to become involved in Lost in a serious manner, is it bad to take it too far? Over it's three seasons, Lost has become notorious for creating more story lines than it resolves. To that end, being a Lost nerd may be more a hindrance to appreciating the show. If you are wrapped up in some subplot, you may become frustrated with the show when the producers decide to discard it or otherwise change their focus. While Lost succeeds in part because it is a long form mystery that can draw in strong fans, it may be better television if appreciated from an arms length.

If you get deeply involved in the details of Lost, it can be easy to miss the forest for the trees. The essential truth of Lost is that as human beings we will face conflict and challenge in our lives, but no matter what we have done in our past, we can survive those challenges if we stick together. It is at bottom a show about friendship in dire circumstances and managing to care how you survive and not merely that you do. In the end, Lost is a well made human drama, even as it teases the audience with indefinite clues and leads us down paths that go no where.

That is why I think it is possible to watch Lost without being a fanboy: even if you miss all the details, it is still possible to appreciate the show for it's themes and the story that is being told.

Projects

More than anything I want this blog to simply be a place where I can work through my thoughts about pop culture as they come up. I do have some longer term projects along those lines that I want to pursue. So, here are some of my projects:

Try to understand how creative works become art. What counts? It seems that film is recognized as an art form, but TV is not. Massive interactive installations but not video games. I know this is pretentious, but I want to understand what art and creative work does in our lives, what purpose it serves and what it does for us.

-- Is TV art?
-- Why I don't rewatch movies very often.
-- Similarly why music loses power over time.
-- What is in the canon of popular music.
-- How do the artifacts of popular culture function in society compared to the fine arts artifacts of previous generations?

I also intend to write about politics so far as it interests me. I am primarily interested in systems and big picture issues. It often seems that we try to solve specific issues in society without fully considering how those changes can impact other parts of society. Again, I'm trying to think systemically and, as with my travels in pop culture, to understand the world around me.

Reading List

I am currently not reading much as I am trying to study for the next month, but these books are on my reading list:

How to Read a Film by James Manaco
For Prophet and Tsar: Islam and Empire in Russia and Central Asia by Robert D. Crews
How I Found Livingstone by Henry Morton Stanley
Islam and Democracy by Esposito & Voll
The Secret History A Novel by Donna Tartt
No Country for Old Men A Novel by Cormac McCarthy
Electoral Systems and Democracy by Diamond and Plattner
The American State Constitutional Tradition by John J. Dinah
Mimesis by Erich Auerbach

And I have most recently finished The Freedom Manifesto by Tom Hodgkinson.

That book affected my thinking some. So, expect it to come up occasionally.

A few of my friends have repeatedly told me that I read too much. That's a strange thing, I think, since we often hear how people don't read enough. That criticism--that people don't read enough--usually comes up in some jeremiad, and of course has to be taken skeptically.

I read for a reason though. Despite having two novels on my current reading list, I generally don't read fiction. If I want a story or drama, I will watch a movie. I find movies and TV to be much better at conveying drama than literature. That is not to say, however, that I don't like literature. It's just that if I am going to spend some time reading, I want to learn something. Ultimately, reading is a way for me to learn about the world. And I think that is one of my primary duties as a human being.

Kurt Vonnegut died last year. One retrospective listed this quote from his book God Bless You, Mr. Rosewater:

"Hello, babies. Welcome to Earth. It's hot in the summer and cold in the winter. It's round and wet and crowded. At the outside, babies, you've got about a hundred years here. There's only one rule that I know of, babies—God damn it, you've got to be kind."

Here Vonnegut revealed one of the plain truths of our existence. We don't have much time on this little speck of dirt as it circles the sun, so we've got to do the best that we can. For me that does not simply mean being kind but also trying to understand the world.

And that's why I read so much.