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<<Spoilers Below>>

The Dark Knight is a good film.  What made it a great film for me – a man who has just spent a year writing a thesis on game theory – is the amount of game theory contained within it.  The most obvious is the ferry situation.  There has been some extremely good discussion on the blogosphere in regard to the game theory in the movie: here and here are what I found to be the best.  If you are interested in this, I suggest reading those blogs – and the comments – before proceeding with the rest of this post.  It will give necessary background.

The ferry situation could be described as a prisoner’s dilemma or a game of chicken. However, as the two aforementioned blogs point out, the situation is certainly a game of chicken with a twist.  Emphasis on the twist.

Here is my analysis for the situation:

Each boat has a choice of “Detonate” or “Not Detonate.”  However there is a chance that (1) Batman finds a way to prevent the Joker from detonating the boats if they both choose “Not Detonate” – which happens or (2) the Joker was dishonest in that he’d blow up the boats or (3) the Joker’s description of the rules are in some other way dishonest – he’ll blow up the boats anyway, etc.  The entirety of this chance could be represented as a chance node: p = probability that Batman can foil the Joker’s plan or the Joker was dishonest to the benefit of the people on the boat; (1-p) = probability that the game is exactly as the Joker states, or worse.  I assign payoffs as follows: 7 = live without blowing up the other boat; 5 = live with blowing up other boat; 0 = die.  (You could also complicate matters further by adding another payoff of 1 = die but with the dignity of not blowing up the other boat.  It would, however, not change the Nash equilibrium.)

The game tree would appear as:

Hopefully I’ll have a bit more time to work on developing this over the next few days.  Some great fun can be had with it.

– Timothy DeHaut

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After an interesting discussion in my Cyberspace and the Law class this morning, I would like to throw out another question with which cultural relativism must grapple: what should we do about Internet censorship?

For instance, would a cultural relativist support a group like the OpenNet Initiative, whose goal is “to identify and document Internet filtering and surveillance, and to promote and inform wider public dialogue about such practices”?

On the one hand, this goal aims to promote a more open global dialogue about the issue, something which seems to be at the core of cultural relativism. But, on the other hand, don’t we have to assume an objective ethical baseline (censorship bad) in order to achieve this global platform?  As a logical matter, some methods of filtration and blocking must be removed in order for this dialogue to even take place.  How can cultural relativism reconcile this tension?

Daniel Corbett

These are the words of Walter Sobhak (played by John Goodman) in the classic Coen brothers’ film, The Big Lebowski, a film I have, for reasons obvious to those who have seen it, put on a pedestal and often over-quote. But I think they’re actually very relevant to our current discussion of cultural relativism.

As I have suggested, I believe same-sex couples who lawfully enter into a civil union or marriage in one country should have that arrangement honored by another country if they decide to move. Mr. DeHaut, in his paper, raised the question of whether we ought recognize certain rights (custody, etc.) while not recognizing others (tax privileges, etc.). And while I initially rebuffed this suggestion, I think I now see the value in this point, particularly as it relates to cultural relativism.

To wholeheartedly embrace cultural relativism, the argument goes (and let me know if I’m setting up a straw man here…), we would have to remain neutral toward many practices (e.g., female genital mutilation) we believe to be wrong on a very basic level. But, as we see in the context of same-sex marriage, we may approve of what other cultures are doing and perhaps even want to recognize some rights “created” in other nations. So the question here is where do we draw that line in the sand?

I’d like to make a distinction between affirmatively created or contractual rights on the one hand, and passively accepted rights or political rights on the other. This distinction allows us to accept as valid a same-sex marriage (or at least certain aspects of it; see this post supra) or an overseas business obligation, while at the same time denying such negative rights as the right to oppress others and such positive rights as the right to free state university education (which we may oppose for moral or efficiency reasons).

Does this distinction help? What problems– in cultural relativism or otherwise– have I left untouched?

Daniel Corbett

A very thoughtful paper, Tim.  I think it raises a number of interesting issues regarding national sovereignty, cultural relativism, and international law.  Whether these concepts can be fitted together into a clear policy solution is an open question.  That said, I have some thoughts and questions I’d like to throw out.

First, I must disclose that I have often argued against cultural relativism, but I think it is nonetheless a very useful tool for shaping policy and legal analysis.  And, personally, I think you’ve done a good job of using it here.  I’d agree that respect for the laws and cultures of different nations should lead us to honor same-sex marriages that were legally formed in another country.  I think there’s an analogy to contract law here.  For example, if you make a deal with one of your friends in Dublin, you don’t expect to somehow become exempt from the obligations arising from that deal when you move back to Pittsburgh (unless, of course, that was stipulated in the contract).  This makes intuitive sense because, in this example, nothing aside from your geographic location has changed.  I’ve yet to hear any good argument as to why this shouldn’t apply to a marriage (or civil union) contract.

Second, and where things get a bit more confusing, is toward the end of your paper, where you propose that we divvy up certain rights arising from marriage:

However, any right or obligation of marriage that can be recharacterized as a nonmarital right- such as a right to contract, or a parent-child relation, or an obligation created by judicial judgment should be recognized while rights that are not capable of being so recharacterized, such as the right to file joint state tax return, should not be recognized.

To me, this seems potentially dangerous.  How are we to determine what marital rights will be respected and what marital rights will not be respected?  Parent-child relations should most likely be preserved.  As you mentioned, “best interests” standards tend to be vague and easily manipulable.  But why the rights of a judicial judgment?  I am nothing of an international law scholar, but my gut tells me that it might be controversial to give res judicata effect to decisions of foreign courts.  And why not recognize certain tax privileges?  Granted, I can see an obvious administrative and economic deterrent to recognizing such privileges, but are these reasons good enough?  In short, where do we draw the line?

Finally, I’d like to hear some thoughts on the tension between cultural relativism and fundamental rights.  As we have seen in analyzing U.S. Supreme Court decisions, fundamental rights are often hard to define.  Is there a way that we can start defining these on a global scale?  If not, is cultural relativism our only alternative?

— Daniel Corbett  

First, I’d like to thank Mr. Corbett for the opportunity to guest blog. The following is a – rather academic (apologies) – essay on what to do about “invasions” of gay marriage into forums who have public policy against gay marriage. I do not argue for or against gay marriage (which may be an interesting discussion to have), but rather I assess how to deal with migratory marriages from countries or states that have a different world-view on the issue. I regret not developing more rigorously the idea of cultural relativism – an area that has been a long interest to me in philosophy and philosophy of science. I believe it holds the key to the area overall. By this I mean that cultural relativism is pitted against “fundamental rights” or ideas of universal human rights. Hopefully I develop these ideas soon. The issue of gay marriage may go up to the S.Ct. on a Loving v. Virginia type argument. I’m afraid the S.Ct. is not going to take a case in the near future, hence why I feel the following choice of law argument still is useful. Another interesting argument that may be had here is what the S.Ct. should do if it does take a case on gay marriage. Advocates of same-sex marriage have been arguing that same-sex marriage is legal right. Their claim rests on four legal arguments: (a.) People have a fundamental right to marry; (b.) Discrimination against gays is morally and legally equivalent to discrimination against African-Americans (c.) Denial of same-sex marriage is a form of sexual discrimination (d.) It is unconstitutional because it is just arbitrary and unfair (that was the basis of the decisions in Vermont and MA). I will not at this time make any analysis on the merits of these claims – though I would contend it would be an extremely interesting debate.  Finally, I must point out that the essay is more research than original thought; the footnotes are perhaps the most important points.

Same Sex, Different Country[i]

By: Timothy J. DeHaut

§1 Introduction

The family is quite often considered the foundational unit that makes up society.[ii] Ideals of family are strongly held throughout the world. These ideas however are not unified; different cultures hold different beliefs of marriage, divorce, and same-sex marriage. In an era of globalization, families move across national boarders. Nationals of different countries may set up the family unit in a particular country and then move to another country.[iii] Sometimes the family unit falls apart and people seek divorce; the regulations governing divorce may be different in two different nation states, both of which may have an interest in governing the people seeking the divorce. Sometimes the family units themselves, for married gays, are against the belief system of the country. “Thus, on a variety of issues, in the transitional context, the different values that define family structure within particular cultures will come into direct conflict.”[iv] There is no universal law governing the world. Moreover, with the broad cultural differences in ideals of family law, a transnational agreement is far from practically attainable.[v] Individual countries themselves are far from unified.[vi] The debate surrounding same-sex marriage and unions, in particular, is particularly vigorous with many vocal voices on either side. Should countries give any effect to same-sex partnerships or divorces within their boarders? Within the United States, are individual states obligated to give effect to same-sex partnerships or divorces granted in other states? These questions are difficult and highly emotionally laden. Luckily, “rules of private international law go a long way in respecting the competing norms that are vying in a complex global society.”[vii] Traditional choice of law analysis gives significant insights into how to deal with the novel problems of globalization and family law.

§2 Cultural Relativism and Local Cultural Respect

Like so many issues of globalization, a universal international accord unifying the law in the area would solve many of the problems; universal international consensus on some of the issues however is far from philosophically or politically possible. Moreover, even where universal international agreement has been made, cultural relativism still plays a key role in its implementation. One such instance is cross-boarder custody disputes.

Two relevant universal international agreements are relevant to the area of cross-boarder custody disputes: the Protection Convention and the Abduction Convention.[viii] Disputes over and about children are guided by these two agreements. One of the important elements to these agreements is an assessment of the “best interests” of the child when calculating whether a child should be returned to another jurisdiction after abduction by one parent. “‘Best Interests’ is an amorphous concept filtered through the customs and mores indigenous to a particular society; cultural relativism cannot be completely ignored.”[ix] One example in the convention is that a child need not be returned if there is a “grave risk” that return of the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”[x] Courts inevitably apply their own concepts of physical or psychological harm to the analysis. That said, often courts can yield to other views that do not reflect their own ideals. Three examples are illustrative: In Friedrich v. Friedrich,[xi] the Court considered returning a child to his father in Germany and whether that would cause psychological harm. The Court stated, “Even if the home of Mr. Friedrich were a grim place to raise a child in comparison to the pretty, peaceful streets of Ironton, Ohio, that fact would be irrelevant to the federal court’s obligations under the Convention.” For the Friedrich Court, the question was not where the child would be happiest, but rather whether the Convention required the Court to allow for reserve that question for the Court in Germany. The Friedrich Court shows the acceptance of cultural relativism. In Hosain v. Malik,[xii] a Maryland court was asked to determine whether to enforce a Pakistani Court order that required a child to be returned to Pakistan. The mother, who had removed the child to Maryland, argued that the Pakistani Court did not apply the best interest of the child in awarding custody. The Maryland court disagreed stating that the best interests analysis must be done through the lens of Pakistani cultural and values. Among the values were the father’s right to control the child, the mother loosing her rights for being wicked and not promoting the religious interest of the child, and that the mother was overall inappropriate to bring up the child under the views of Pakistani cultural.[xiii] Here again, the Court applied cultural values different to its own in accordance to cultural relativism. Finally, in Silverman v. Silverman,[xiv] a court of appeals reversed the lower courts decision not to return a child to Israel. The court of appeals reasoned that the mother, who had removed the child to the United States, could make no particularized showing of grave risk to the children aside from the “general regional violence… that threaten[s] everyone in Israel.”[xv] The three illustrative cases above show that cultural relativism is often not ignored in regard to cross-boarder child abduction cases. The three cases, however, are not a complete description of the decisions in the area. Often, courts make decisions about individuals that they have very little connection with by relying on ideas of universal human rights. In fact, the general idea of human rights – a universalist concept – is pitted against cultural relativism. While an answer to this question is beyond the scope of this article, important insights in regard to the debate can be gleaned from an examination of another area of family law: marriage.

§3 The Precedents of Polygamy and Miscegenation

Any choice of law analysis is an interest analysis that tries to balance the legitimate interests – both territorial and personal – of different States in having their own laws applied.[xvi] The basics of the choice of law analysis can be summarized as follows: “A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.”[xvii] Since a state has the right to regulate marriage within its own boarders, no state should have to defer to another state’s marriages when its own citizens are involved. “When a state makes the social and legal decision to bestow a special status of ‘marriage’ or ‘partnership’ on a particular relationship, it is making a statement about its set of values for a particular community. A state or country makes that judgment, not for the world at large, but for a relevant community in which it has interest.”[xviii] Therefore, the public policy doctrine allows for a state to regulate its own citizens while allowing other states to regulate their citizens. The public policy exception has been invoked, historically, in two main contexts: polygamy and international marriage (or miscegenation). Importantly however, a blanket rule of nonrecognition was never fully accepted in any context.[xix] Rather, countries choose to recognize marriages for different purposes.

An English case, Baindail v. Baindail,[xx] presents an example in the context of polygamy.[xxi] An English woman, Lawson had married a British Indian man, Baindail, in England in 1939. After some time, Lawson discovered that Baindail had previously contracted a Hindu marriage in India and that he had a son in that marriage. Lawson sought to annul her marriage on the grounds of bigamy. Baindail “cited several cases that seemed to indicate that potentially polygamous marriages were not regarded as marriages at all by English law and argued that he was therefore legally a single man at the time of his English marriage.”[xxii] The first British polygamy case, Hyde v. Hyde,[xxiii] supported this position. The Baindail court did not want to legalize polygamy but it also did not want to ignore Baindail’s prior marriage in India. It wanted to recognize the marriage for limited purposes while not allowing polygamy to infiltrate its domestic law. The court was able to do this by showing that marriage created a large number of different legal rights which could be separated out – a concept familiar in the property law context. The result was Lawson’s marriage could be annulled. Other cases, such as Nachimson v. Nachimson,[xxiv] used similar mechanisms. The present English rule forbids polygamous marriages from taking place within England. People who live in England cannot contract such marriage elsewhere. But polygamous marriages are otherwise recognized by English courts today.[xxv]

A similar problem arose in the United States involving interracial marriages, or miscegenation. Southern American states, during the early and middle twentieth century, had strong public policy against miscegenation. Three classes of choice of law problems arose involving interracial marriages: First were evasion cases, where parties had traveled out of their home state for the express purpose of evading the state’s prohibition on their marriage, and thereafter immediately returned home. Courts always invalidated these marriages.[xxvi] If the state had a legitimate public policy it should not have been so easily circumvented. Second, were extraterritorial cases, where parties never lived within the state, but in which the marriage was relevant to litigation conducted there – for instance, litigation in regard to inherited property after the death of a spouse. Courts always recognized these marriages.[xxvii] Finally, were migratory cases, where parties had contracted a marriage valid where they had lived and subsequently moved to a state where interracial marriages where prohibited, though the parties never had the intention of evading the law. Courts were divided on the issue.[xxviii]

The United States was not the only country to have prohibition of interracial marriage. South Africa’s 1949 Prohibition of Mixed Marriage Act prohibited its male citizens from entering into interracial marriages in another country. Importantly, however, it did not apply to foreigners who moved to South Africa. “Like the Jim Crow [US] South, South Africa did not seek to apply its law outside its borders; the law’s preeminent object appears to have been, once more, the prevention of interracial cohabitation within the country.”[xxix], [xxx]

§4 What to do about Same-Sex Marriage

The question of gay marriage is extremely volatile throughout the world. Equally contested is the issue of recognition of other country’s marriages which are same-sex unions. While the emotion involved in this debate may seem unprecedented, throughout history there have been equally divisive. The precedents of polygamy and miscegenation provide important insights into how to deal with same-sex marriages. When and when not to recognize same-sex unions in a forum can be broken into evasive, extraterritorial, and migratory; a visitor category could also be added. A marriage is evasive only if the parties are domiciled in the state that prohibits them from marrying.[xxxi] Evasive marriage should not be recognized except in situations where there was no possibility that the marriage would continue within the state’s boarders, such as inheritance suits after a spouse has died. Similarly, in extraterritorial marriages, but the marriage is relevant to litigation conducted there, should be recognized for all purposes, regardless of the public policy of the forum state.[xxxii] Visitor marriages should also be recognized as the state has less interest in regulating people who not their own citizens; moreover, it does not affect their public policy. Migratory marriages present the most difficulty in this context as they did in the miscegenation context. However, lessons from Baindail can be helpful here: marriages can be recognized for some purposes and not for others. Individual case assessments must be made. However, any right or obligation of marriage that can be recharacterized as a nonmarital right- such as a right to contract, or a parent-child relation, or an obligation created by judicial judgment should be recognized while rights that are not capable of being so recharacterized, such as the right to file joint state tax return, should not be recognized.[xxxiii]


[i] Title adapted from Andrew Koppelman, Same Sex, Different State, New Haven: Yale University Press, 2006.

[ii] Ireland has gone as far as putting the idea of family as the basic unit of society into their Constitution. See Irish Constitution, Article 41.

[iii] Linda Silbeman and Karin Wolfe, The Importance of Private International Law for Family Issues in an Era of Globalization: Two Case Studies – International Child Abduction and Same-Sex Unions, 32 Hofstra Law Review 233, 233.

[iv] Id.

[v] Belgium, Canada, Netherlands, South Africa, and Spain allow for same sex marriage. Denmark, Sweden, Norway, Finland, Iceland, and the UK have partnerships that are nearly identical to marriage while France, Germany, Austria, Hungary, Portugal, Brazil, Croatia, New Zealand, and parts of Australia, Argentina, and Switzerland, give a limited sets of rights. See generally Koppelman, pg 57. In other areas of the world, such as Saudi Arabia, homosexual acts can be punished by death; in over 30 nations, homosexual acts can be punished by significant prison sentences.

[vi] The United States, for instance, is significantly divided on the same-sex marriage debate with Massachusetts and allowing for same sex marriage; Vermont, California, Connecticut, New Jersey, and New Hampshire have schemes that grant almost all the rights of married couples without the name of marriage. Hawaii, Maine, Washington, Oregon (2008), and DC grant partnerships that have some rights. Forty US states have statutes that bar recognition domestic partnerships and civil unions. Eighteen states have constitutional bans on same-sex unions; seven have bans on same-sex marriage. See generally Koppelman, pg 57. Lawrence v. Texas (2003) outlawed anti-homosexual sodomy laws in the United States, however, at the time about 14 states still had criminal provisions for homosexual acts.

[vii] 32 Hofstra Law Review at 272.

[viii] See Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Oct. 19, 1996, 35 I.L.M. 1391 (1996) [abbreviated Protection Convention]; Convention on the Civil Aspects of International Child Abduction, open for signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1342 U.N.T.S. 89 (entered into force Dec. 1, 1983) [abbreviated Abduction Convention].

[ix] 32 Hofstra Law Review at 237.

[x] Abduction Convention, supra note 8, art. 13(b), T.I.A.S. No. 11,670 at 9, 1343 U.N.T.S. at 100.

[xi] 78 F.3d 1060 (6th Cir. 1996).

[xii] 671 A.2d 988 (Md. Ct. Spec. App. 1996)

[xiii] See generally, 32 Hofstra Law Review at 236-37.

[xiv] 338 F.3d 886 (8th Cir. 2003).

[xv] Id. at 901.

[xvi] Koppelman, 15.

[xvii] Restatement (Second) of Conflicts of Laws, §283(2) (1971). While the Restatement is a statement of the laws in the United States domestic context, the theme of the summary is representative of the worldwide choice of law jurisprudence.

[xviii] 32 Hofstra Law Review at 247.

[xix] Koppelman, 31.

[xx] [1946] All E.R. 342, CA.

[xxi] See generally, Koppelman, 82-83.

[xxii] Id.

[xxiii] L.R. 1 P. & D. 130 (1866). The Hyde court famously defined a marriage as the voluntary union for life of one man and one woman, to the exclusion of all others. The Hyde court invalidated a Mormon marriage for the purpose of enforcing matrimonial duties.

[xxiv] [1930] 1 P. 217 (C A) (recognized a Russian marriage as valid for the purposes of divorce because the ability to get out of the marriage did not effect the English definition of marriage)

[xxv] See Koppelman, 84.

[xxvi] Id at 37.

[xxvii] Id.

[xxviii] Id.

[xxix] Id at 41.

[xxx] Today, these laws no longer stand. Anti-miscegenation laws were held invalid by the United States Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967), and in South Africa in 1985.

[xxxi] See Koppelman, 106.

[xxxii] Id at 112.

[xxxiii] Id. at 112.

Morgan,

When you ask “why are we such poor imperialists?”  you’re hitting on a very interesting question, inside of which lies a whole host of contemporary debates– covering everything from foreign policy, to culture, to economics.   But it’s a question that might be easily brushed aside as a matter of good taste.  After all, we aren’t imperialists, nor do we want to be.  Right?

Maybe not.  There are some who argue that 21st century globalization is just the latest instantiation of the West’s imperial legacy.  And, in all honesty, that argument doesn’t seem too far afield:

“Political globalisation is a fancy word for imperialism, imposing your values and institutions on others. However you may dress it up, whatever rhetoric you may use, it is not very different in practice to what Great Britain did in the 18th and 19th centuries.”

If globalization is part and parcel to imperialism, aren’t we succeeding, rather than failing?  We are good– perhaps a little too good– at exporting our culture.  After all, it’s the almighty bottom line that brings Western businesses to every corner of the globe (all the while, mind you, catering to the local culture, giving us such gems as the McFelafel).  We clearly aren’t lacking the imperial will in the economic arena.

What you’re driving at, I think,  relates more to our foreign policy goals, primarily in the Middle East.  As we all know at this point, our efforts to rebuild Iraq are ranging from “mess” to “bungled mess.”  And why is this?  As you point out, we don’t have a vast contingent of dedicated civil servants, lining up to “do their share” for democracy.  The British Empire was what it was not only by virtue of its military might, but also by virtue of its core of hardworking young doctors,  economists, farmers, and the like who were willing to go to any corner of the globe in the name of the Empire. 

As was noted in a recent news story on the rebuilding efforts: “[In Iraq] the U.S. government has contracted the job of promoting democracy to a Pakistani citizen who has never lived or worked in a democracy.”

For many in our generation, our cultural and economic presence abroad is distasteful.  For a variety of reasons, some meritorious and others not, America’s international reputation is not sterling.  Small wonder we are not lining up to rebuild hospitals in Iraq. 

So I take your last question (whether postmodernism has made the idea of exporting our way of life), and I send it back to you in a slightly different form.  We know that globalization at some level is inevitable.  But we also know that globalization is not beholden to the same laws as imperialism.  The world today is far more cosmopolitan that it was duringthe height of the British Empire, and with that cosmopolitanism comes a necessary respect for other ways of living.  (Need I invoke the McFelafel once more?)  So the question is this:

Are the rules of empire different in a postmodern world?  Corporations can web their way into every country on the map, but when they do so, they must adapt at some level.  Is this what our political structures must also do?  But even if we recognize that we have to be more tolerant and flexible in implementing political institutions, how do we go about meeting basic human needs when globalization has cowed our would-be civil servants into apathy? 

Daniel Corbett

Morgan,

I agree, to a point– Ashdown’s second principle is the most important and, arguably, the most overlooked. In every liberal project there’s a great danger of pushing democracy before its institutional prerequisites– such as the rule of law or a market economy.

But I also think there’s a danger in thinking that the rule of law is something that can be established “quickly.” The United States enjoyed the great and unusual luxury of developing democracy and the rule of law in a relative vacuum. Other than the customs of various Native American tribes, which were, to be sure, quite disparate, there were no existing institutional norms with which American-style liberalism had to contend. In cases like Iraq, we don’t have the luxury of an institutional vacuum. Indeed, there is a whole raft of political, cultural, and religious traditions that may (of necessity?) but heads with liberalism. We must be careful, though, not to let this fact lead us down the garden path toward fatalism. Indeed, we have many good reasons to want the rule of law and democracy in other parts of the world. But we must be careful to exercise patience in our push for these institutional goals.

At the end of the day, security alone is not the answer. When generation after generation has been taught that force is the best method for resolving political differences, it won’t matter too much how many tanks we can put on the streets.

Institutions by nature evolve, and are never easily imposed. Maybe the best we can do is sit back and see if our ideas take hold.

That aside, it’s a great book, isn’t it?
Daniel Corbett

We all know the story of the Palestinian childern who spaked a bloodbath by throwing rocks at Israeli tanks. This is the textbook case of a “disporportionate reaction,” a phrase that musters leers from many international relations scholars. What prompts reactions like this? Are we hard-wired to react? To over-react?

Self-defense is a natural occurence. But maybe it’s our puzzling neurological framework that makes international affairs as messy are they are. Human beings have an innate tendency to overreact, writes Daniel Gilbert, a Harvard psychologist. Psychological studies have shown that human beings have outwardly-directed memories. In other words, we are much more aware of others’ actions than our own. Small wonder then, given this fact, that recent study has shown humans will respond, on average, with 40 percent more force than the initial attack.

He hit me first, so I’ll hit him back– harder. This is not a new phenomenon by any measure, but Gilbert seems to think it has some bearing on international relations:

Until we learn to stop trusting everything our brains tell us about others — and to start trusting others themselves — there will continue to be tears and recriminations in the wayback.

I’m a bit more skeptical.

In short, Gilbert’s insights are incredibly useful in the realm of interpersonal relations, but perhaps irrelevant in the realm of international relations. True, I as an individual can “turn the other cheek.” Mental life, as Gilbert duly noted, is a private affair. Ultimately, we are only responsible for our thoughts and our reactions. And I don’t think it’s too much to expect some people to act according to a virtue of harmony rather than a neurological dictum. But if this theory is to have any relevance in IR– if we are to see the better world Gilbert envisions– there must be a groundswell of individuals acting against their neurological urges. Politics makes clear the fact that the human animal is still, at some level, bound by biology.

If there’s an answer to the vexing problem Gilbert has presented– violence, instability, and fractionation– it lies not in understanding human psychology, but in understanding human institutions. Diplomacy, economics, and international law have enjoyed mostly good track records because they framed their debates in stark terms. They looked at the reality of human psychology– our imperfect, often selfish dispositions– rather than hoping for a transcendent moment of collective human virtue. And through these dark, pragmatic lenses, we have begun to see (at least on the whole) a paradoxical movement by societies toward these virtues.

Morgan and readership, a few questions for you: First, am I underestimating the human condition here? Can people really overcome their nature en masse? Economics assumes a rational, selfish actor– is this accurate? What are the dangers in assuming this?
– –Daniel Corbett

    Glen Whitman at Agoraphilia blogs about the logical maneuvering behind a popular anti-immigration argument. The argument– we've all heard it before– posits that, faced with rapid immigration, America's social welfare system would start to collapse under its own weight. In other words, there's a fixed pie, and there's simply not enough to go around.

    Whitman (via Julian Sanchez) points out a dangerous assumption in the above argument: that we assume a social welfare system exactly like the one we currently have. If political institutions are fixed from the outset, change of any sort is going to be tough. So what causes people to assume political fixity? It's a case of backward induction, Whitman argues. People in intellectual circles often deal with questions of moral personhood first and then move on to political questions about rights, statuses, and entitlements. But the vast majority of people often get it upside-down: answering political questions first and then drawing up conclusions of moral worth in response to these answers.

    This backward induction leads to an interesting paradox. We want to retain our well-intentioned and noble welfare state, so we assume a whole raft of rights to which people (though we haven't touched on the important matter of defining these people) are entitled. From here though, budgetary limitations, etc. (what a brilliant professor of mine has referred to as "the funkiness of life") often force us to make rather inhumane judgements such as "close off the borders."

    Whitman leaves us with a powerful closing thought:

"If we wish to encourage people to regard other moral beings as equals and not enemies, we should favor social systems that foster cooperation rather than creating conflicts of interest."

Daniel Corbett

    Nuclear power for magoes? It sounds like it. According to the New York Times, a U.S. ban on Indian mangoes will soon be lifted "as part of a deal struck by President Bush on his March visit to the country, which will also give India easier access to nuclear technology. Quid pro quo, as far as many Indians are concerned. 'The U.S. is looking forward to eating Indian mangoes,' he said at a press conference, cheering up a local press that he had earlier disappointed by not seeming too well-versed about cricket and Bollywood, two other Indian passions."

    Well, there you have it. Diplomacy as absurdist bargaining. Doesn't bother me, though, because there's a swimming pool sized vat of mangoes waiting for me at Kroger right now.

Daniel Corbett

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Erin Pyles Photography

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