Takashima Ohisa using two mirrors to observe her coiffure, Kitagawa Utamaro, ca. 1795
The rule of law, like democracy itself, is grounded in intangibles: in a faith in reason, logic, and humanitarianism, a belief, as Socrates said in Plato’s Gorgias, that it is better to suffer injustice than commit injustice, and in a belief in verifiable fact, the possibility of delineating truths and untruths. The primacy of these virtues makes the rule of law possible. Without them, the law becomes farce, an instrument not of justice but oppression.
These intangibles are inculcated into a society through religious belief and education as well as through democratic participation. Personal morality translates into social morality. Only with a widespread faith in reason and humanitarianism, and a consensus that one must always act morally, even if it means facing persecution, can the rule of law be built. If that ethic is absent, then justice is impossible and the rights of the individual are meaningless. Jean-Jacques Rousseau understood the danger of divorcing the law from reason and ethics, writing, “I refer to morals, customs and, above all, belief: this feature, unknown to political theorists, is the one on which the success of all laws depends.”
Moral philosophers have long argued, as far back as Plato and Aristotle, that a moral education and moral sentiment inculcated into the public is the foundation of the rule of law. The final arbiter is not the law itself, for the law, as we see in totalitarian societies, can as easily be used as an instrument of injustice as of justice. Tyrannies make war, for this reason, on the belief in virtue.
Democritus, the pre-Socratic philosopher, understood that open societies are rooted in this intangible individual ethic. He wrote:
Not out of fear but out of a feeling of what is right should we abstain from doing wrong… Virtue is based, most of all, upon respecting the other man… Every man is a little world of his own… We ought to do our utmost to help those who have suffered injustice… To be good means to do no wrong; and also, not to want to do wrong… It is good deeds, not words, that count… The poverty of a democracy is better than the prosperity which allegedly goes with aristocracy or monarchy, just as liberty is better than slavery… The wise man belongs to all countries, for the home of a great soul is the whole world.
His wisdom would be echoed throughout the centuries.
“It is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do,” Edmund Burke thundered in the House of Commons.
American jurist Learned Hand, in a 1944 speech on “The Spirit of Liberty,” wrote: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
Podcast: The Decline of Morality amidst the Celebration of the Self with Chris Hedges
Neither the absence nor the presence of legal institutions or just laws, as Democritus, Rousseau, Burke, and Hand understood, guarantees justice, for as Montesquieu, himself a judge, observed, “There are good laws everywhere.” The question is whether these laws are fairly executed. And these laws will only be fairly executed if there is a consensus within the society that virtue and justice are more important than the petty concerns of the self.
I have reported from Hobbesian worlds where there is no rule of law, including El Salvador, Bosnia, Kosovo, northern Albania, and the Congo. In these worlds justice is deformed into vengeance. It is the prerogative of the powerful. Policing is controlled by warlords and militias. Bribery is rampant. The capacity to inflict violence is the primary criterion for power. Competing armed bands, led by gangsters and warlords, who usually have short life spans, terrorize the innocent to loot and pillage.
But centralized authority, a legal code, and a judiciary are also no guarantee of a civil society, as Stalin’s purges and show trials illustrated. Tyrannies use the pretense of law and the formal institutions designed to protect us from the abuse of power as instruments of repression, turning due process into farce. They condemn those who demand justice as subversive and ruthlessly silence them.
This world without justice breeds not only cynicism—a belief that, since the structures of power are hostile, appeals to virtue are meaningless—but despair. Hypocrisy and deceit become essential to remain integrated into the society. This moral squalor creates a schizophrenic existence. Moral behavior is reduced to the private sphere, at best, and abandoned in the public. Indeed, to live in totalitarian societies such as fascism or communism, it is imperative that in public the lies told by the state are parroted back and embraced. Repeating these lies is a prerequisite not only for work, advancement, and social status, but for survival.
The moral decay in Western society, and in particular in the United States, where the cult of the self is celebrated at the expense of justice, undercuts the foundations that make the rule of law and democracy possible. This exclusive and obsessive focus on the self is fostered by the corporate state, as it was in fascist and communist states, not only to compensate for the loss of political freedom but to erode the virtues that make justice possible.
The left is as infected with the cult of the self as the right. The hookup culture, the sexual sadism of our pornified society, the salivating over obscene wealth and celebrity, the fostering of self-presentation on social media at the expense of the truth, the quest for eternal youth, the Cancel Culture, the investment of emotional and intellectual energy into spectacle—from sports to Hollywood—the narcissism of a perverted how-is-it-with-me form of spirituality, and the giddy consumerism—all buttress the system of corporate totalitarianism. The cult of the self, the core belief of all despotisms, erodes private morality until it is as bankrupt as public morality. It diverts the public’s focus from social, political, and economic inequality to the trivial, the banal, and the superficial.
The cult of the self has within it the classic traits of psychopaths: superficial charm, grandiosity, and self-importance; a need for constant stimulation; a penchant for lying, deception, and manipulation; and the inability to feel remorse or guilt. This is the twisted ethic of predatory capitalism, the belief that personal style and personal advancement, mistaken for individualism, are the same as democratic equality. Brands, wealth, and celebrity—and social media platforms allow everyone to create their own version of “Life: The Movie”—take the place of democratic equality. An unbridled narcissism encourages us to focus exclusively on our own desires and lusts at the expense of others. Self-presentation and self-advancement are more important than justice or truth.
No democracy can survive when this is the dominant ethic. Nihilism infects public and private life. The law is something to be manipulated and surmounted to serve our interests. The goal is our own advancement at the expense of others. Achieve this, the object of every reality television show, and you win.
Armies of attorneys hired by corporations overwhelm the legal system, gutting environmental regulations, slashing taxes for the wealthy and the corporations, and protecting corporate leaders from accountability. They work against the public interest. They have, at the same time, largely emasculated the role of legislative bodies, nullifying the role of elected officials. The war on the legal system is now complete, with a Supreme Court and a judiciary largely made up of former corporate attorneys and political ideologues.
“Power,” as former Supreme Court justice Thurgood Marshall wrote in his last dissent, “not reason, is the new currency of this Court’s decision-making.”
Harlan Fiske Stone, who served on the Supreme Court from 1925 to 1946, excoriated the legal profession for its failure to curb the avarice of the “giant economic forces which our industrial and financial world have created.” Lawyers, he went on, were not supposed to be guardians of corporate power. He asked why “a bar which has done so much to develop and refine the technique of business organization, to provide skillfully devised methods for financing industry, which has guided a world-wide commercial expansion, has done relatively so little to remedy the evils of the investment market; so little to adapt the fiduciary principle of nineteenth-century equity to twentieth-century business practices; so little to improve the functioning of the administrative mechanisms which modern government sets up to prevent abuses; so little to make law more readily available as an instrument of justice to the common man.” The law, he said, was about “the advancement of the public interest.” He castigated the educated elites, especially lawyers and judges, who used their skills to become “the obsequious servant of business” and in the process were “tainted with the morals and manners of the marketplace in its most anti-social manifestations.” And he warned law schools that their exclusive focus on “proficiency” overlooked “the grave danger to the public if this proficiency be directed wholly to private ends without thought of the social consequences.” He lambasted “the cramped mind of the clever lawyer, for whom intellectual dignity and freedom had been forbidden by the interests which he served.” He called the legal profession’s service to the power of corporations a “sad spectacle” and attorneys who sold their souls to corporations “lawyer criminals.”
Today, we find that our constitutional rights have steadily been stripped from us by judicial fiat. The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Yet our telephone calls and texts, emails, and financial, judicial, and medical records, along with every website we visit and our physical travels, are tracked, recorded, and stored in government computer banks.
The executive branch can order the assassination of US citizens without trial, as it did with the cleric Anwar al-Awlaki in Yemen in 2011. It can deploy the military into the streets to quell civil unrest under Section 1021 of the National Defense Authorization Act (NDAA) and seize citizens—seizures that are in essence acts of extraordinary rendition—and hold them indefinitely in military detention centers while denying them due process.
The one million lawyers in the United States, the deans of our law schools, and the judges in our courts, whether self-identified liberals or Federalist Society members, largely refuse to hold corporate power accountable. They have failed us. They alone have the education and skill to apply the law on behalf of the citizens. They alone know how to use the courts for justice rather than injustice. When the history of this period in America is written, the legal profession will be found to have borne much of the responsibility for our descent into corporate tyranny. Lawyers are supposed to be “officers of the court.” They are supposed to be sentinels and guardians of the law. They are supposed to enlarge our access to justice. They are supposed to defend the law, not subvert it.
The fiction of a vibrant democracy remains useful. If the charade exists, we do not have to confront what political philosopher Sheldon Wolin calls our system of “inverted totalitarianism.”
This inversion of totalitarianism represents “the political coming of age of corporate power and the political demobilization of the citizenry,” Wolin writes in Democracy Incorporated (Princeton University Press, 2017). Inverted totalitarianism differs from classical forms of totalitarianism, which revolve around a demagogue or charismatic leader, finding its expression instead in the anonymity of the corporate state. The corporate forces behind inverted totalitarianism do not, as classical totalitarian movements do, boast of replacing decaying structures with a new, revolutionary structure. They purport to honor electoral politics, freedom, and the Constitution. But they so corrupt and manipulate the levers of power as to make democracy impossible.
A Literary Discussion in the Second Gallery, Honoré Daumier, 1864
Inverted totalitarianism is not conceptualized as an ideology or objectified in public policy. It is furthered by “power-holders and citizens who often seem unaware of the deeper consequences of their actions or inactions,” Wolin writes. But it is as dangerous as classical forms of totalitarianism. In a system of inverted totalitarianism, it is not necessary to rewrite the Constitution, as fascist and communist regimes do. It is enough to exploit legitimate power by means of judicial and legislative interpretation. This exploitation ensures that large corporate campaign contributions are protected speech under the First Amendment. It ensures that heavily financed lobbying by large corporations is interpreted as an application of the people’s right to petition the government. Corporations are treated legally as if they are people, except when they carry out fraud or other crimes, or in cases in which the “persons” agree to a “settlement.” Those within corporations who commit crimes avoid going to prison by negotiating settlements under which they pay large sums of money to the government while, according to this twisted judicial reasoning, not admitting any wrongdoing. There is a word for this: corruption.
The bankruptcy of personal and public morality is a pervasive phenomenon among the higher echelons of the nation’s largest banks and financial firms. The billionaire class preaches laissez-faire capitalism to the public, the belief that government handouts to the poor are parasitic and foster dependency, but they immediately looted the US Treasury of trillions of dollars during the global economic meltdown, which they orchestrated. They committed massive fraud, including lying to investors and hiding losses. Goldman Sachs, for example, sold pools of mortgages for which 50 percent of the borrowers didn’t show an ID when taking out their loans and others put down less than 1 percent cash on nearly a billion dollars’ worth of home loans. These mortgages were listed as AAA-rated investment-grade securities. They were sold to pension funds, trade unions, retirement accounts, college funds, insurance companies, and institutions. When borrowers defaulted, which Goldman Sachs knew would happen, those who had been scammed saw their savings wiped out by as much as 40 percent. Not only was no one held accountable, but these firms, including Goldman Sachs, were bailed out.
Corporations have 35,000 lobbyists in Washington and thousands more in state capitals, who dole out corporate money to shape and write legislation. They use their political action committees to solicit employees and shareholders for donations to fund pliable candidates. The financial sector, for example, spent more than $5 billion on political campaigns, influence peddling, and lobbying during the past decade, which resulted in sweeping deregulation, the gouging of consumers, and the financial collapse. Pharmaceutical Research and Manufacturers of America (PhRMA) spends some $30 million a year, and drug companies such as Pfizer, Amgen, and Eli Lilly kick in tens of millions more, to buy off the two political parties. These corporations made sure the so-called health reform legislation (the Affordable Care Act) forced us to buy their predatory and defective products. The oil and gas industry, the coal industry, defense contractors, and telecommunications companies have thwarted the drive for sustainable energy and orchestrated the steady erosion of civil liberties. The arms industry drains government resources, including, most recently, through the bipartisan allocation of $54 billion to fund the proxy war against Russia in Ukraine. Politicians do corporate bidding and stage hollow acts of political theater to keep the fiction of the democratic state alive.
There are hardly any national institutions left that can accurately be described as democratic. Citizens, rather than participating in power, are allowed to have virtual opinions about preordained questions, a kind of participatory fascism as meaningless as voting on American Idol. Mass emotions are directed toward the raging culture wars. This allows us to take emotional stands on issues that are inconsequential to the power elite.
Critics, from the left and the right, are at the same time being disappeared from the media landscape. The six-year archive of my show, On Contact, was recently erased from YouTube. The show, which was broadcast on RT America, did not have one episode about Russia. It gave a voice to critics of police violence, our penal system, imperialism, the wars in the Middle East, corporate capitalism, and the Democratic Party. Such disappearances of unwanted voices are somehow supposed to make the problems besetting the US vanish.
The most vocal cheerleaders for such censorship are the liberal class. Terrified of the enraged crowds of QAnon conspiracy theorists, Christian fascists, gun-toting militias, and cultlike Trump supporters who grew out of the distortions of neoliberalism, austerity, deindustrialization, and the collapse of social programs, they pressure and plead with the digital monopolies to “deplatform” critics and make it all go away. They blame anyone but themselves. Democrats in Congress have held hearings with the CEOs of social media companies, pressuring them to do more to censor content. Banish the troglodytes and we will have social cohesion. Then life will go back to normal. “Fake news,” “harm reduction model,” “information pollution,” “information disorder”—they have all sorts of Orwellian phrases to justify censorship. Meanwhile, they peddle their own fantasy that Russia was responsible for the election of Donald Trump. Their stunning inability to be remotely self-reflective or self-critical is ominous as we move deeper and deeper into a state of political and social dysfunction.
Our transformation into an empire, as happened in ancient Athens and Rome, has seen the tyranny we practice abroad become the tyranny we practice at home. We, like all empires, have been eviscerated by our own expansionism. We utilize weapons of horrific destructive power, subsidize their development with billions of taxpayer dollars, and are the world’s largest arms dealer. And the Constitution, as Wolin notes, is “conscripted to serve as power’s apprentice rather than its conscience.”
“Inverted totalitarianism reverses things,” Wolin writes.
It is politics all of the time, but a politics largely untempered by the political. Party squabbles are occasionally on public display, and there is a frantic and continuous politics among factions of the party, interest groups, competing corporate powers, and rival media concerns. And there is, of course, the culminating moment of national elections when the attention of the nation is required to make a choice of personalities rather than a choice between alternatives. What is absent is the political, the commitment to finding where the common good lies amidst the welter of well-financed, highly organized, single-minded interests rabidly seeking governmental favors and overwhelming the practices of representative government and public administration by a sea of cash.
The civic, patriotic, and political language we use to describe ourselves remains unchanged. We pay fealty to the same national symbols and iconography. We find our collective identity in the same national myths. We continue to deify the Founding Fathers. But the America we celebrate is an illusion. It does not exist. Our government and judiciary have no real sovereignty. Our press provides diversion, not information. Our organs of security and power keep us domesticated and fearful. Capitalism, as Karl Marx understood, when it emasculates government, becomes a revolutionary force. And this revolutionary force, best described as inverted totalitarianism, is seemingly plunging us into a state of neo-feudalism, perpetual war, and severe repression.
Law is rapidly becoming nothing more than what it was in the late eighteenth century: court etiquette. The citizenry, in danger of losing its belief in the rule of law, often seeks to subvert it. The ruling elites, tasked with enforcing the common good, make war on the common good. These realities, however, are symptoms, the result of the moral decay that has infected the US. The collapse of personal morality, those intangibles that make a civil society possible, presaged the collapse of a public morality. Once this moral grounding is lost, tyranny is inevitable.
How do we respond?
To stand up for justice, to speak truth, as we see with Julian Assange, has a terrible cost. The more corrupt and venal American society becomes, the more fear, censorship, and coercion will be used to exert control. Acts of private and public morality will become increasingly risky, even dangerous. Those who resist will be grounded in a morality that mocks the values defined by the cult of the self. To demand justice will be to accept the inevitability of self-sacrifice, to believe, as Plato said, that it is better to suffer injustice than to inflict or be complicit in injustice. It will mean becoming an outcast, one whose actions no longer make sense to the wider society. It will be lonely and hard.
But these moral dissidents, whom W. H. Auden called “ironic points of light,” shame the wider society. The courage to resist social nihilism exposes and erodes the lies that sustain tyrannies. Truth terrifies despots. Those who resist may not, as distinct individuals, survive, but their decency and capacity for empathy, their ability to remain rooted in truth, preserve the values that make open societies possible.
This commitment to truth and justice is a moral imperative. It is worth the price. Our integrity and dignity matter more than our personal comfort. Defying radical evil sustains resistance. It steadily, often imperceptibly, weakens tyranny. It gives us what is most precious, a life of meaning. It saves our souls.
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