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Moral Foundations of Politics: Lecture 1 Transcript

Enlightenment revolved around two ideas. The first is the idea of basing our theories of
politics on science--not on religion, not on tradition, not on superstition, not on natural law,
but on science. The Enlightenment was born of an enormous optimism about the possibilities
of science. And in this course we will look at Enlightenment theories that put science at the
core of political argument.

The second main Enlightenment idea is the idea that individual freedom is the most important
political good. And so if you wanted to get the bumper sticker version of the Enlightenment
account of politics, it is, "How do you scientifically design a society to maximize individual
freedom?"

Three Enlightenment traditions: We'll look at the utilitarian tradition, the Marxist tradition,
and the social contract tradition.

The utilitarian tradition says that the way in which you create a scientifically organized
society is you maximize the greatest happiness of the greatest number. This is the slogan of
utilitarianism. Maximize the greatest happiness of the greatest number. You'll find there're
huge disagreements among utilitarians about how you measure your happiness, and how you
maximize it, and how you know when you've maximized it and so on, but the utilitarians all
agree that that's the goal, and if you can do that you will do more to maximize human
freedom than anything else.

The Marxist tradition has a very different theory of science, what Marx called the science of
historical materialism, but it too was based on this idea that we can have impersonal scientific
principles that give us the right answer for the organization of society. One of Marx's famous
one-liners was that we will eventually get to a world in which politics is replaced by
administration, implying that all forms of moral disagreement will have gone away because
we will have gotten technically the right answers. Another formulation of that same idea
actually comes from a different Enlightenment thinker who we're not going to read in this
course, David Hume, who said, "If all moral disagreements were resolved, no political
disagreements would remain." So that's the idea of a scientific solution to what appear to be
the moral dilemmas that divide us. So for Marx we'll see a very different theory of science,
but for him too, he thinks that freedom is the most important good.

That might surprise you. Most people think, "Well, Marx was about equality. He was
egalitarian." We'll see that that's only true in a somewhat derivative sense because in the end
what was important for Marx was that people are equally free, that they are in a situation of
not being exploited, and he too, therefore, is an Enlightenment thinker.

Then the social contract tradition says that the way we get a scientific theory of society is to
think about what agreement people would make if they were designing society for the first
time. If society was going to be based on a contract, what would it look like? And this is what
gives us the right answer as to what is--rational scientific principles tell us how we should
organize society, and it's a world in which people's freedom is preserved because it's what
they choose to do. Again, as in these other Enlightenment traditions there's massive
disagreement about who makes the contract, how they make it, what the content of it would
be, but it's the metaphor of a social contract that shapes all reasoning about the way in which
you can organize society scientifically in order to preserve freedom.

So in the first two-thirds of the course we're going to work our way through those three
Enlightenment traditions. But every current has it undertow, and even though the
Enlightenment was this enormously energetic and captivating tradition that really starts in the
seventeenth century and gathers steam in the eighteenth century, there was always resistance
to the Enlightenment, both its preoccupation with science and its view that individual
freedom is the most important good. And so after we're done looking at the Enlightenment,
we're going to look at anti-Enlightenment thinking, and the tradition that resists the idea that
there are scientific principles around which society can be organized, and resist the idea that
the freedom of the individual is the most important good, and we'll explore that tradition.

THE MORAL FOUNDATIONS OF POLITICS

Lecture 2 - Introductory Lecture [January 13, 2010]

Chapter 1. Who Was Adolf Eichmann? [00:00:00]

Professor Ian Shapiro: Okay, so let's begin. I asked you to bear two questions in mind in
reading the Eichmann, and I'm going to get to those in a minute. But before we get to that,
who was Adolf Eichmann? Who was Adolf Eichmann?

Student: He was the expert on Jewish immigration and relocation.

Professor Ian Shapiro: But what was his job? What was he there to do?

Student: Well, in the beginning he was sent to talk to the Jewish elder council and try to
negotiate the moving of thousands of Jewish people as quickly as possible from different
areas throughout Europe.

Professor Ian Shapiro: Correct. What else was he supposed to do? Why don't you give
somebody else a chance? That was certainly part of what he was doing. What else was he
supposed to do? Was he somebody who was involved in designing the final solution, as it
was called in the Third Reich? Was he a policy maker? People are shaking their heads. No he
wasn't. He was basically an implementer, right? He was obeying orders and his job was to
make the trains run on time, literally speaking; the trains that were going to take Jews to
concentration camps. It was a complicated logistical feat and he was in charge of it. His job
was to make sure that it was an efficiently run operation. As I said, at the end of the war he
was actually captured by the allied forces, but they didn't realize what a significant figure he
was. He was subsequently released, inadvertently made his way to Latin America where he
lived undercover until the Mossad found out where he was, and in 1960 they kidnapped him,
brought him to Israel where he was tried in the trial that you read about in this book for today.
Found guilty of crimes against the Jewish people and crimes against humanity and put to
death.
Okay, what kind of a person was he? What do you think motivated him? When you read this
what kind of a person, what stood out about him? Anybody?

Student: It seems throughout the text that he was driven by this idea of self-advancement, the
need for...

Professor Ian Shapiro: He wanted to get ahead.

Student: Yeah.

Professor Ian Shapiro: He wanted to impress his superiors.

Student: Yeah, first and foremost, I believe.

Professor Ian Shapiro: He wanted to get an A, right, pretty much? That's one thing that strikes
you about him, yeah. What else struck you about him?

Student: The thoughtlessness that he demonstrated throughout the campaign.

Professor Ian Shapiro: The what? Sorry.

Student: The thoughtlessness.

Professor Ian Shapiro: Thoughtlessness.

Student: Just kind of the blind obedience to the Führer's word.

Professor Ian Shapiro: He was not a reflective man.

Student: Not at all.

Professor Ian Shapiro: He's not somebody who would question authority, right? Did you get
the impression he hated Jews?

Student: No.

Professor Ian Shapiro: No. What makes you say that?

Student: I mean, well first during his testimony he claimed that he didn't hate Jews. He
actually was a supporter of the Zionist movement through some of the readings that he did
before 1939. And throughout even the years between 1939 and 1945 when he was carrying
out all these actions that were detrimental to the Jewish people, he found himself having
Jewish friends, working with the Jewish people trying to find solutions, but as long as that
didn't contradict the orders of his superiors.

Professor Ian Shapiro: I think you've got him exactly right. He was not somebody motivated
by a visceral anti-Semitism. Indeed, you get the impression reading this book that if his
superiors had said to him, "Instead of shipping people to concentration camps we want you to
ship munitions around the Third Reich to resupply the army," or "We want you to ship car
parts," he would have done it with the same zeal and desire to improve his standing with his
superiors. He wouldn't have been any different about it. He didn't seem to be like somebody
who saw this as a great opportunity to do something he really believed in. He was simply
trying to get an A, trying to get ahead, trying to impress his superiors, do a good and efficient
job at whatever it was that he was asked to do. If that's an accurate description about him it's
quite chilling, right? And I think this brings us to the first question.

Chapter 2. Analyzing Eichmann's Actions [00:05:44]

What is it that makes you uncomfortable about this man? One of the things I asked you to
think about, what makes you uncomfortable about Eichmann? Yeah?

Student: The fact that he was just basically not thinking about what he was doing, so
someone else had total control of what he was going to do.

Professor Ian Shapiro: So his un-reflectiveness is what makes you uncomfortable.

Student: Right, because that means really anyone can be like that. It kind of makes you reflect
on yourself and just on human nature.

Professor Ian Shapiro: Okay, so you feel he should have been questioning the authorities that
were giving him the orders to do this?

Student: Yeah, that'd be nice.

Professor Ian Shapiro: Okay, that's definitely one thing that makes people uncomfortable.
What else? Anybody else? Yeah?

Student: It was just that his un-reflectiveness transferred to the fact that — well, he wanted to
do his job well, but the fact was that he wasn't just transporting munitions. These were
people's lives, supposedly people he easily could have been friends with.

Professor Ian Shapiro: Right, he wasn't thinking about the larger purpose. So it's connected to
the un-reflectiveness, although we'll see that one of the themes in this course that political
theorists write about is the whole idea of detaching means from ends of thinking about how to
do things efficiently without reference to what it is that we are doing, but it makes us
uncomfortable.
What else makes you uncomfortable about this man? What makes your skin crawl when you
think about him? Anything else? Yeah? Get the microphone.

Student: He was gloating. Like when he was in Argentina and he was doing his interviews he
was gloating about the million of people that had died because of him because of his work.

Professor Ian Shapiro: He was pleased that he had done a good job.

Student: Yeah.

Professor Ian Shapiro: It wasn't as if he was doing this with any sense of reluctance, right?
Even though you don't get the sense that this man had a visceral anti-Semitism about him he
certainly was pleased with the fact that his superiors liked what he was doing, and that he was
being commended for it, and he was getting ahead. Anything else that makes you
uncomfortable about him? Yeah?

Student: He brings up the term idealist and he sort of attaches a sense of honor and loyalty to
the Third Reich that we find uncomfortable because of what it's trying to accomplish.

Professor Ian Shapiro: Loyalty to his superiors.

Student: Right.

Professor Ian Shapiro: That he thought it was important to obey his superiors. Okay,
somebody over there was going to say something. Yeah, over there.

Student: Well, it's not something specific about his actions, but I'm uncomfortable with the
fact that when he is considered normal by all the tests, and too, when he was wasn't thinking
at all he actually thought he was thinking and he fooled a lot of people into thinking that he's
smart and competent. So it makes me wonder if that stupidity is just something within all of
us.
Professor Ian Shapiro: Yeah, I think that's right as well. So here you have a man who is
completely unreflective about what he's doing. He's obeying orders from above. He's not
breaking the law, right, at all. He's implementing the law as it's enacted in the Third Reich
and he's going about something that is absolutely monstrous with calm efficiency and good
humor. You could imagine this guy going home at the end of the week, playing with children,
being friends with the neighbors, going to a barbecue, and going back to work the next day,
right? One of Arendt's phrases to capture this is that — one of the things that seems so
chilling about this guy is that he doesn't seem like a monster. He seems like the man next
door. And the phrase she uses is, "The banality of evil." He doesn't seem like somebody
who's got some unusual traits.

So I think to turn the screw a little bit further one of the things that makes people
uncomfortable with a man like this is it sort of makes you wonder how would you have
behaved in his situation. You hope you would have not behaved as he did, but he doesn't
seem that unusual. He seems completely unremarkable man, fairly typical guy doing what
he's, you know, putting one foot in front of the other in the situation in which he finds himself
and getting on with his life. And that, I think, is captured by her phrase, "The banality of
evil."

Chapter 3. Analyzing Eichmann's Apprehension, Trial and Execution [00:11:30]

Okay, let's now just put Eichmann to one side for a minute and think about the second
question I asked you to reflect upon while reading this. What two things make you most
uncomfortable about the events surrounding Eichmann's apprehension, trial and execution?
First of all, why did Israel do what it did? Why do you think they went and kidnapped him? I
mean, the normal process if you're trying to get hold of a criminal in other countries, you go
and you apply for extradition, and you make the case, and you go to court, and the person is
arrested, and eventually they're brought to trial. So why didn't they do that? Why did they do
what they did? Anybody even know or what to take a guess? Why did they do that? Does
anyone want to try that? Yeah?

Student: Well, it seems to imply that they might have been concerned or might have
suspected that other countries wouldn't be sympathetic to their wish to try Eichmann. They
might have worried that he'd garnered a certain amount of international support or defense in
the country he was living in.
Professor Ian Shapiro: I think that's right. If they had tried to extradite him it wouldn't have
worked. As soon as he knew that there were many other former Nazis in Argentina and
elsewhere in Latin America, the minute he realized that they knew where he was and who he
was he would have gone underground and vanished. And there would have been so much
sand in the wheels of the extradition system that they made a judgment, which is probably a
valid judgment that if they were going to get him at all, this was the way they were going to
get him. So that's why they did it. Pretty much that's why they did it. Okay, so given that
that's why they did it, what if anything makes you uncomfortable about what they did? Over
here we need a mic, yeah.

Student: In one of the last two chapters, I believe, they're discussing the reasons for judgment
against him on all the counts, and one of them she's discussing the four main points that they
attempt to prove through the prosecution. And in some of them they discuss the term in dubio
contra reum, which is, I guess, when in doubt act against the defendant. And that was kind of
just when we don't have necessarily all the evidence because a lot of it is speculative, we will
act in a way that will...

Professor Ian Shapiro: Okay, so there was not a lot of attention to the rules of evidence.

Student: Yeah.

Professor Ian Shapiro: Right? Okay, so that's one thing. There were a lot of what we would
think of as procedural irregularities in this trial. Yeah?

Student: I was uncomfortable with the speed of the execution. It happened extremely soon
after his appeal and plea for mercy; within a couple of hours.

Professor Ian Shapiro: Right, it was the way executions are done in China today, not the way
executions are done in the United States today, right? It was very rapid. And why were you
uncomfortable with that?

Student: I think there's no doubt that what he did was wrong, but you at least have to go
through the procedures just to ensure that justice is actually served, so that even if it was
correct that he deserved the death penalty. I think the actual protocol should have been
followed and that he should have gotten his time to make the appeal.
Professor Ian Shapiro: Okay, anything else make anybody uncomfortable about what was
done? Over here, yeah?

Student: It mentioned in the beginning how showy the trial was, and one part that I thought
really stuck with me was when the author mentioned that Israel's laws itself prohibited
Jewish...

Professor Ian Shapiro: Israel what, sorry?

Student: Israeli law prohibited Jewish and non-Jewish marriage, so how the two societies,
although one is certainly worse than the other, I think, on a moral level there's still no perfect
society, and that really was kind of disturbing, I think.

Professor Ian Shapiro: So it was something of a show trial.

Student: Yeah.

Professor Ian Shapiro: There was more than one agenda here. One agenda was justice,
bringing him to justice, but clearly there was an agenda of revenge, and there was an agenda
of catharsis for many of the people who testified, who came there. It was very important for
them personally to get up and speak about what had happened to them for which he was held
responsible. So there were multiple agendas going on here, only one of which was what we
normally think of as what's going on in a criminal prosecution. Anything else make anybody
uncomfortable? Yeah, over here.

Student: The author mentioned that Israel wouldn't have gone to the trouble of kidnapping
him if he wasn't automatically going to be found guilty. It was just a foregone conclusion
from the beginning and that's just really setting such a bad precedent for trials in general. So
even though it wasn't clear he was guilty the fact that it was just — they wouldn't have even
troubled going through it if they thought there was any possibility of him being found
innocent or not guilty.
Professor Ian Shapiro: Okay, so the outcome was never in doubt.

Student: Uh-huh.

Professor Ian Shapiro: Okay, and that makes you nervous because? Hang on.

Student: Because, well, his case is pretty black and white, but that's just setting a precedent
for the future. And if in a case where he's so clearly guilty you can't use real evidence, and
you can't actually go through the steps, the meaningful steps of a trial to find him guilty, then
it seems like in the future other trials where it's not so black and white may be made more
into show trials as well. Like he could clearly have been found guilty in a meaningful way
with real evidence and they just kind of didn't try to do that.

Professor Ian Shapiro: Okay, anything else make anyone uncomfortable? Yeah, over here.

Student: Also the lack of evidence that was eligible for procurement on the side of the
defense and the lack of defense support really stuck out to me.

Professor Ian Shapiro: They didn't have what we call discovery. There was a lot of procedural
irregularities here. They didn't have access to the evidence. There were a lot of what, you
know, when you all go off to the law school and you learn criminal procedure a few years
from now, there was a lot of what would be called reversible error in this trial; that is on
appeal would have run into trouble, procedural problems. So there were procedural problems
in the trial, what else? Over there, yeah?

Student: It makes me uncomfortable that Israel was even claiming jurisdiction in the case
considering the crime did not happen on Israeli soil and that they literally had to send their
secret service to kidnap him to bring him to Israeli soil.

Professor Ian Shapiro: Okay, so you are troubled that they thought they had jurisdiction in
this matter.
Student: Right.

Professor Ian Shapiro: Because the crime didn't happen on Israeli soil. Any other reason why
one might be troubled that they claimed jurisdiction?

Student: It felt like it was the country kind of speaking for a people or speaking for humanity
in a way that was just unsettling to me.

Professor Ian Shapiro: Okay, that they arrogated to themselves the right to prosecute in the
name of the Jewish people and in the name of humanity, crimes against humanity they
convicted him of, you might say. Who appointed them to do that? I think there's a lot of truth
to what you say there, but there are a number of other aspects to it as well. Why else might
we be troubled that they thought they had jurisdiction to do this? What does jurisdiction mean
anyway? What is jurisdiction? Yeah?

Student: I think it's equally troubling that they thought that they had to do this. I mean, they
talked a lot about the way that former Nazis are being tried in Germany and how lenient their
punishments were. I think that that is kind of the need of the German people to kind of, I
don't know, kind of like, twist history in that way to kind of take blame away from these
people who obviously did a lot of things wrong. In a way force Israel to have to kind of take
this very like drastic sort of extra legal action.

Professor Ian Shapiro: Okay, but so I think you all make a number of valid points, but
somebody would say, a devil's advocate would say, "Well, look, nobody's seriously alleging
that he was incorrectly convicted. Nobody's seriously alleging that he didn't do this." We've
already said by assumption that they were working on the premise that if they didn't
prosecute him it wasn't going to happen at all. So what's there to be that troubled about? Is
there a counter argument to that? Yeah, over there.

Student: Next time it might not be so clear. Another country might use this as a precedent for
themselves.

Professor Ian Shapiro: Okay, so there's a precedent issue, and what are the precedent's we're
worried about?
Student: The precedent of claiming jurisdiction over any number of crimes that occur
elsewhere, the precedent of basically kidnapping in order to have a legal system, the
precedent of show trials for serious crimes.

Professor Ian Shapiro: And it's potentially a huge issue. I don't know if you noticed Israeli
politician Livni canceled a trip to Britain a few weeks ago because they discovered that some
prosecutor in Britain was going to have her arrested for war crimes in Gaza. She had been
foreign minister during the Gaza invasion a year ago. And the British government was very
embarrassed and they were trying to fix it so that that couldn't be done again. But Pinochet
couldn't travel to many places because he was eventually going to be arrested. There are
some countries in which there are conversations about whether they might try and arrest
Donald Rumsfeld if he travels to them for what went on at Abu Ghraib. So if countries start
setting themselves up and saying we have the right to prosecute war criminals, how is it
going to be regulated? Who are they going to be answerable to? It might look okay in this
case because nobody seriously contends that Eichmann didn't do these things or that they
were justifiable, but there's this precedent setting issue that you have to worry about.

Anything else? Anything I haven't mentioned that you might find troubling? I mean, might
somebody not say, "Look, it's not just that it wasn't on Israeli soil, this guy's being prosecuted
by a legal system which didn't even exist when he committed his crimes, and furthermore he
was obeying a legal system that did exist," right? He was in Germany in the 1940s obeying
the laws of the Third Reich. He wasn't breaking any laws then, and now he's being tried in a
legal system in a country that didn't even exist then for violating other laws. Isn't this just
victor's justice? So what do we say about that? Did they do the wrong thing? A lot of people,
I think, would grant much of what's been said here and still be troubled by the notion that
they shouldn't have done it because he would never have been brought to justice.

Chapter 4. Eichmann's Actions versus His Apprehension, Trial and Execution [00:25:24]

Okay, now let's take a step back from this conversation and bring in what we were doing in
the first half of our discussion. Don't you think there's a tension now between the two halves
of our discussion? Because when we were talking about what made us uncomfortable about
Eichmann it was his abdicating his moral responsibility to question the prevailing law, to
question the legitimacy of what he was being asked to do, his un-reflectiveness, his lack of
interest in the overall goals of the enterprise that he was part of. This completely unreflective
person doing what he was told to do, obeying orders, trying to please his superiors and get
ahead, that's what made us uncomfortable. But now when we talk about what Israel did in
1960 it seems like what makes you uncomfortable there is the fact that they did do all of
those things. They sat down and they said, "Well, yeah, there's international law, and there's
extradition, but hey, you know what? It's not going to happen. And if we want to get the
morally correct outcome here we have to take it upon ourselves not to accept the existing
rules of the game, not to accept the existing order, but to stand up for what's right." So how is
it that we on the one hand are uncomfortable with Eichmann for failing to do that, but here
we're uncomfortable when these Israeli commandos and prosecutors do exactly that? Is that a
real contradiction or am I missing something? Anybody want to pick up that? What do you
think?

Student: So I do think it's a contradiction and very worth examining, but one sort of
interesting aspect of it is just that I think part of what we object to about the trial is that it
claimed to be following a certain legal order, and that it sort of associated this working
outside the system with a system.

Professor Ian Shapiro: So what is that legal order?

Student: With the Israeli legal system, I mean, with the judicial court system of the nation of
Israel.

Professor Ian Shapiro: I take your point, but it's not very plausible. It's not the best defense
because after all, as has come up in this conversation, even by the standards of existing Israeli
law was not a great conducted trial.

Student: Right, but what I'm saying is that this trial, which clearly broke a lot of what we
would consider the good standards for trial sort of tainted somehow the idea of the Israeli
judicial system. I'm not saying this would have been better, but some of our objections
wouldn't necessarily apply if it had been really obviously, just like a political assassination,
because they didn't know what else to do with him. I mean, not that that would be acceptable
either necessarily, but just the relation of this to the courts gets in there somehow too.

Professor Ian Shapiro: Okay, so that might speak to part of it, but anything else about this
tension between on the one hand we're worried that Eichmann abdicated his moral autonomy
and responsibility. On the other hand we're uncomfortable that they asserted theirs. Yeah?
Student: Well, I'm not really quite sure the tension completely exists if we're to assume that
one system of government or one system of laws is, like, legitimate and valid like the Israeli
trial system. Like having a system that lets you have appeals, that doesn't kidnap people
illegally versus a system that kills millions of people who are innocent of doing anything
wrong, and kills them simply for who they are. So in Eichmann's case it seems to me that it is
legitimate to challenge him, to challenge the system, and to be shocked or disappointed when
he doesn't and just goes along with it. On the other hand, to bring someone like that to justice
it is a bit troubling that when you have a system that does work, or that we widely believe to
be a judicial system that does work and is sort of widely accepted to be a good system, setting
a precedent there could be potentially a bad thing. I'm not quite sure there's a tension if in one
case, challenging the system is good, and in the other maybe challenging the system has more
of a gray area of issues.

Professor Ian Shapiro: Well, I think you've hit the nail on the head. I think that the tension
goes away if we say, "Well, the reason we are troubled by Eichmann's failure to ask any
questions about what he was being asked to do within the legal order of the Third Reich is
that it was an illegitimate illegal order." It was as Arendt says somewhere in there, it was a
criminal regime, and it was his failure to recognize that that makes us uncomfortable. On the
other hand, when we start talking about the system of international law, it has its
imperfections, but we're much more ambivalent about saying people can ignore it with
impunity, because we don't see it as an illegitimate order in the same way that we did. So I
think you're exactly right when you point out that this is not a real tension. It's an apparent
tension, appearing to be a tension on the fact that most of us don't have any qualms in
thinking about the Third Reich as an illegitimate regime and that that's why we're
uncomfortable with his actions. Whereas, when you do have at least a fledgling legitimate
international legal order we become uncomfortable with people who flout that.

Chapter 5. Five Traditions: What Makes a Regime Legitimate or Illegitimate? [00:32:03]

So I think that's right, but it places the central question of this course into sharp relief because
our question is, "Well, what is it that makes a regime legitimate or illegitimate?" If we say
you have an obligation to resist an illegitimate regime and to obey a legitimate one, that just
pushes the question one step further back. What is it that makes a regime legitimate? And that
is the question that we're going to organize our discussion around in the coming weeks and
months. We're basically going to explore five answers to that question, or five types of
answers, or five classes of answers to that question, and they represent the main ways in
which political legitimacy has been thought about in the western tradition over the past
several hundred years.
The first one that we're going to look at is the utilitarian tradition. And the utilitarian
tradition, which we're going to trace back to Jeremy Bentham, who we'll start talking about
on Friday, says that a regime is legitimate to the extent that it maximizes the greatest
happiness of the greatest number of its citizens. Now, there are huge arguments within the
utilitarian tradition as to what counts as happiness, how you measure it, what you do if
promoting the happiness of some comes at the expense of the happiness of others. All of
those things get argued about endlessly in the utilitarian tradition, and we will explore some
of those arguments as we go along. But the basic idea is that good regimes, legitimate
regimes maximize the utility or the happiness of people who are subject to them.

And then the second set of answers, the second tradition we're going to look at is the Marxist
tradition which comes into its own in the nineteenth century, and that basically identifies the
legitimacy of the state with the presence or absence of exploitation. Legitimate governments
are those that try to prevent exploitation, and illegitimate governments are those that facilitate
exploitation. Again, just as in the utilitarian tradition there are huge disagreements about how
to identify utility and measure it, in the Marxian tradition, from the beginning, there have
been huge disagreements about what constitutes exploitation, how you would know it when
you see it, what would be involved in eradicating it, and how governments might or might not
be able to do that. But at the end of the day it is the presence of exploitation that is the marker
of an illegitimate order, and it's the possibility of escaping exploitation that creates the
possibility of a legitimate order. And so the Marxian answer to the question of legitimacy
revolves around this idea of exploitation.

The third tradition we're going to look at is what's commonly known as the social contract
tradition, and the social contract tradition founds the legitimacy of a political order in the
notion of consent, agreement. Again, you'll find just as with all these other traditions a lot of
disagreement about what constitutes agreement, what constitutes consent. Is it some people
who actually agreed at some point in the past that should bind us? The American founders
agreed on certain things and therefore we should be bound by what they agreed upon, or is it
what any rational person would agree to? Is it a hypothetical idea of consent? Does the
consent have to be active? Do people actually have to engage in consent or can it be tacit?
Can you demonstrate your consent simply by not leaving? All of these issues will get a lot of
attention when we look at the social contract tradition, but for all of their internal differences
and disagreements the social contract tradition comes down to the proposition that the
legitimacy of the state is rooted in the consent of the governed.

The fourth tradition we're going to consider is what I call in the syllabus the anti-
Enlightenment tradition, reacting against those first three Enlightenment traditions, and the
anti-Enlightenment tradition appeals to tradition. It's the tradition. The legitimacy of the state
resides in, is discovered in the inherited norms, practices and traditions of a society. Again,
we will find people struggling with and arguing over what constitutes a tradition, how you
will know a tradition when you trip over it, what happens when people disagree about what
the tradition implies. All those questions are on the table once we start appealing to tradition,
but at the end of the day it is the appeal to tradition itself that becomes important; that when
you criticize a government you have to appeal to something that is imminent in and accepted
in the tradition. The rights of Englishmen, let's say, as it was appealed to in the eighteenth
century. And then there's a tradition about what the rights of Englishmen are thought to have
been going all the way back to Magna Carta. That becomes the basis for arguing about the
legitimacy of the present actions of the government.

The fifth tradition we're going to look at is the democratic tradition, and the democratic
tradition says that the legitimacy of the state depends upon the extent to which it obeys
something which we'll call the principle of affected interest. That is whether those people
whose interests are affected by its actions get to control what it does. Close cousin of consent
you might say, and indeed the democratic tradition is a close cousin of the social contract
tradition, but at the end of the day it's a different tradition and often works through, but not
always, the idea of majority rule. And so, again, in the democratic tradition there are huge
controversies about how we operationalize and apply this idea of affected interest as the basis
of politics, but the underlying notion is that if you can resolve those issues, trying to make the
government the agent of people who are affected by what it does, is the name of the game in
promoting legitimacy and undermining illegitimacy of the state.

So those are the five traditions we're going to explore. We're going to come back again and
again, not only to the Eichmann problem, but to other practical examples that throw this
question of the legitimacy of the state into sharp relief. But at the end of the day we're always
trying to understand what the basis for political legitimacy actually is. We have a couple of
minutes for questions if anyone would like to... Yeah, mic over here.

Student: What about the notion that might makes right and that the most powerful stays the
most legitimate?

Professor Ian Shapiro: Okay, he says, "What about the notion that might makes right and it's
the most powerful states that get to dictate what legitimacy is?" I mean, you could say that.
After all, if you think about the example we've been considering today. At the end of the
Second World War we had the Nuremberg Trials run by an American Supreme Court justice.
They went to Germany. They did a lot of what Israel did in 1960, actually. They tried these
Germans by laws that hadn't existed at the time for obeying the laws that had existed at the
time. Many of them were executed. Many of them were in prison. You could say this is just
might makes right. If somebody else had won the war there would have been a different
outcome.

So this is a doctrine which we will consider in the course of our discussion, actually, on
utilitarianism. It is, for those of you who want the jargon, the doctrine of legal positivism.
Anyone want to take a crack at what legal positivism means? Anybody know? No reason you
should know. Legal positivism was the doctrine that said exactly what this gentleman here
has been saying; that what makes something law is the ability to get people to obey it. If you
go back into Medieval Europe we'll find a distinction between natural law and positive law.
Natural law is sometimes identified with the will of God, sometimes with timeless universal
moral principles, some higher law by reference to which we judge what actual legal systems
are doing. So when we say the Third Reich was a criminal regime, an illegitimate regime,
we're ultimately appealing to some kind of higher law, some natural law idea as to what
constitutes a legitimate regime, right? And we're going to talk a lot more about natural law
later.

Well, legal positivism was the doctrine that there's no such thing as natural law. Jeremy
Bentham, who we're going to start talking about on Friday, says, "Natural law, natural rights
it's dangerous nonsense, nonsense on stilts. There's no such thing as natural law." And he is
considered as one of the intellectual sources for this doctrine of legal positivism, which
comes into its own in the nineteenth century. If you say, well, there is no higher law then the
question is, well, then what is law based on? One answer is power. Bentham wanted to say it
should be based on science. As I mentioned to you last time, the Enlightenment is all about
faith in science. So we will consider a version of that argument when we come to talk about
utilitarianism, but it's a good point to make particularly in the context of the Eichmann
problem.

Now, what we're going to do, I realize now I misspoke when I said we were going to talk
about Bentham on Friday, didn't I? Why didn't some astute person say, "No, you're not."
We're actually going to talk about Locke. Now, you might say, "Well, why are you going to
talk about Locke?" And the answer is that Locke actually performs two different functions in
this course that you will see. They come together later on. You'll see how they come together
later in the course. But Locke, on the one hand, we're using as somebody to provide us with a
way of understanding the Enlightenment move in politics. And as I said to you, the
Enlightenment move involves a twin commitment to the ideas of science as the basis for
social organization and freedom as the highest good, and that that Enlightenment pair of
assumptions is going to inform the first three traditions we look at, right? Â The utilitarian
tradition, the Marxian tradition and the social contract tradition. Locke will also be looked at
later as a representative of the social contract tradition. But what we're going to do in Friday's
lecture is think about the broad themes of the Enlightenment, for which the Locke reading is
there and it's going to provide the background, and we will not actually get to utilitarianism
until next Wednesday.

One thing I would say to you about the Locke going in — on the one hand it's a tremendously
famous book. It's been in print continuously for more than 300 years. It's been translated into
all the world's languages — all of the world's major languages and many of the world's minor
languages. Locke's most important political writing for sure. It's not a fast read. It's a political
pamphlet. It was written for a very particular political purpose that I'll tell you something
about, but it's not a fast read in the sense that what you read for today is a fast read, and some
of it's going to go right by you and that's okay. Because you might think, "Well, not only is it
not a fast read, but he's going to do a lot of this in one lecture. It seems like a lot to do in fifty
minutes," but the truth is we're going to come back to Locke again and again through this
course, and what you're going to discover is that the ghost of Locke is hovering behind us all
the way through. In many ways modern democratic theory is a footnote to Locke, and so
you'll see we'll consider Locke as a father of the Enlightenment, as a representative of the
social contract tradition, and then Lockean considerations will come in to the Marxist
tradition, to the democratic tradition, to the social contract tradition as well.

So some of what you read for Friday will go by you. Don't worry about it because we're
going to revisit Locke again, and again, and again as we go though the course. Okay, so we
will see you on Friday and then that's when we'll begin talking about John Locke.