Values Matter for Institutions, Cynicism is Politically Useless

What actions are proper for a police officer to take during their interactions with the public? Who has the right to make laws? Who is likely to make true claims about the age of the Earth and who is likely to make false claims? Who should you listen to when it comes to medical treatment and who should you ignore? These questions all have to do with the idea of authority, a generalized belief that a specific actor or organization has the right to take specific actions. Institutions provide a framework for answering these questions. Institutions are collections of social norms that tell us not only who has authority to do what, but also what kinds of exercises of actions are valid and what kinds are not valid. So we can say that institutions legitimate authority, that is, an institution creates the context in which an exercise of power is seen by most as right or wrong. I am using the word authority here very broadly, I don't just mean legal authority, but also other forms of authority. Whether or not someone gets to be your boss at work requires a sort of institutional authority, not just anyone can tell you how to do your job or fire you. The same is true for knowledge-based claims; not anyone can tell you what is true or false, some people's opinions are more respectable than others. The same is true for moral claims, not everyone has the same authority to talk about what is good and what is bad—think about the difference between the moral opinions of a gang member vs. a pastor or moral philosopher.

Institutions tell us who, in a given situation is an authority, and who is not. In the US, the institution of democracy (our Constitutional Republic is a specific kind of democracy) tells us who has the right to make laws and who has legal authority. Our local and Federal government tells us who has the right to arrest people, and also what those people can do when arresting someone. The system of corporations in our economy provides a framework for who can give orders at a job, and what those orders can look like. Our education and scientific systems provide the basis for identifying the people whose knowledge claims about the world are likely to be correct and whose are likely to be junk. Religious and philosophical systems provide the basis for moral claims.

Unsurprisingly, folks who study institutions are often interested in working out how authority emerges in a given system. Put differently, a lot of research about institutions is really research about how any given action can be transformed from a raw act of power to an act legitimated by authority. How do some people, say medical doctors researching infectious disease, come to be recognized as truth-tellers on the subject of disease while others, say podcasters, never seem to achieve the same legitimacy?

Cynicism about authority

One answer to this question, put forth by a group of institutional scholars in the 1970's was that institutions are built up around rituals, and it is these rituals that gives someone authority within a given field. So what gives the sentencing decision made by a judge its authority (what makes it seem like the judge has the right to send someone to prison) is the fact that the judge goes through the trial rituals. The judge wears the special robes, sits in their special seat, and makes sure all the special trial rules, themselves another set of rituals, are followed. My presentation here is quite glib, any institutionalist who took this position would be quick to point out the chain of rituals that began for the judge in law-school and continued through their career as a lawyer, then as a judge, but you get the point. The same argument could be made for the doctor vs. the podcaster. The doctor is more authoritative on the subject of infectious disease because they do the rituals. They went though the ritual of medical school, they attend conferences, write papers, etc. Whereas the podcaster did not. Their rituals involved sitting around getting high. The rituals tell you who to listen to and who to ignore.

I find this view of authority cynical for a variety of reasons, but mainly because it omits values from questions of power and authority. What actors working within the constraints of an institution believe is either treated as totally irrelevant or treated as a product of the ritual itself. A judge may say they care about justice, but that does not really matter for why people think the judge has the right to sentence people in the first place. Or a judge may say they care about justice, but that is only because they went through the rituals of law school, then lawyering, then judging, so the rituals socialized them into caring about justice. Or maybe they were socialized into saying they care about justice and the value was never there.

I think some people find view attractive because it is cynical. One can insist that the values people hold have no bearing on the outcomes of authority and power, which leaves us free to ignore them. If you want to understand the judicial system, beliefs about justice are irrelevant. But is that really the case? It is pretty trivial to show that a mere ritual is not sufficient to establish authority. Consider for example the young earth creationist. These guys hold views about biology and geology that are not well regarded by mainstream science. In fact, their ability to speak with authority about the age of the earth is pretty much non existent. Is it because they don't do the rituals? Well, what sort of rituals would be required to be a scientist (to speak with authority on the age of the earth)? You'd need to defend a PhD, collect data, do analysis, attend conferences, and write papers. But young earth creationists do those things. Many of them have PhDs, sometimes even in fields related to geology. They collect data, they have their own conferences, and even write papers in their own special journals. So why don't they speak with authority? About the only people who believe young earth creationists are people who generally reject science and want to believe in a young earth in the first place.

We can see the same problem arise in the judicial system. Ritual offers a very unconvincing account of how the judicial system has responded to Trump's justice department. At almost every level we see failure in Trumps DOJ despite the presence of ritual. Across the US, but particularly in DC and Virginia, grand juries have rejected DOJ attempts to obtain indictments against Trump's political enemies. This tells us something about the relationship between ritual and legitimacy. Grand jury investigations and indictments are done ex parte, meaning the defense is not present to make an argument against what the prosecutor is saying. The standards for evidence are also lower, meaning the prosecutor's version of the case can be weak and is virtually unchecked. Thus, grand juries have a reputation for rubber stamping whatever a prosecutor wants. If there were ever a place where pro-forma ritual would explain why some actions are legitimate it would be in a grand jury! Yet, Trump's lawyers have seen {} failures since 2024. We also see judges rejecting the arguments of the DOJ time and again, excoriating DOJ lawyers for their behavior and repeatedly sanctioning them with contempt proceedings. Why should Trump's DOJ do so poorly? After all, they do the rituals of the court room. The file briefs and pleadings, they make arguments, raise objections, etc.

It turns out, values matter a lot

What distinguishes young earth creationists from geologists and Trump's DOJ from the DOJs of other administrations, are values. Despite their claims otherwise, creationists do not really value truth or empiricism, relying heavily on cherry-picking data and ignoring obvious problems with their theories. Their rituals are hollow. We can say of young earth creationists that when they collect data, attend conferences and write papers, all they are doing is aping the rituals of science. But the rituals do not actually result in scientific knowledge because what creationists are trying to do is make the data fit their world view. By contrast geologists value truth and empiricism (they really do!) so if there is a theory that only works if you ignore data or the laws of physics, then geologists will tend to regard such a theory as a problem. The institutions that collectively make up “science” coalesce around a particular set of values. Among them are respect for truth, empiricism, and a respect for logic. In general, it will bother a scientist when their theory is contradicted by evidence. It bothers them with their theory turns out to be internally inconsistent. The young earth creationist does not care about that.

The same can be said for Trump's DOJ. Absent from the DOJ's prosecution of Trump's enemies is any concern for justice. Investigations are done so that blowhards can run their mouths on TV, sloppy incompetent work is submitted in courts to “make a statement”. Rules, procedures and in some cases even the law itself is ignored resulting in a pattern of poor performance for the DOJ and the at this point, almost complete destruction of the department's reputation.

The DOJ has all but lost the presumption regularity in the court, making challenges to their legal actions easier for defendants. Why? Because what the DOJ is doing in their prosecutions is unjust. And importantly courts recognize and care about that fact. So if you want to understand how the court system works, you have to understand the values of judges. Why they think this or that action is just and what they do when they encounter parties acting in bad-faith. Values matter. Even an exhaustive and complete description of the rituals would not be enough to describe the system.

Identifying tensions between values and practice is not the same thing as showing that values do not exist

Sometimes people respond to this argument by pointing out that the institutions will endorse a set of values, but fail to meet them, or to say that an institutional version of a value is inadequate. Certainly this sort of charge can be levied against the justice system in the US. There are countless examples of miscarriages of justice. Two obvious examples are false confessions tortured out of innocent people, and the systematic differences in how laws are enforced across different racial groups. These examples make it clear that the US justice system falls short of its own ideals, but saying that an institution falls short of its values is not the same thing as saying those values don't exist. This is the trap of the cynic. It produces a fatal mindset about the institution. If justice is not a value of the justice system, then the system is irredeemable and beyond saving, which leads to the idea that there is nothing there of value and that reform is impossible. But however unjust the US justice system currently is, it is less unjust than it used to be when we consider institutions like slavery legal race-based discrimination, and Jim crow era laws. I argue that one of the major drivers of reform in the history of the US justice system is the chasm between its values and its practice. Demonstrating unequivocally that the justice system is unjust, as the Civil Rights movement did creates a dilemma for those who value justice. If you value justice, then a status quo of slavery, racial segregation, or, for a more contemporary issue, the abuse of plea deals become intolerable. The tension between institutional values and institutional practice become the impetus for reform, and the history of the US justice system shows that drama play out over and over. Importantly each time is does play out, the system gets to be a little better.

Cynicism is politically worthless

The whole point of all of this is to point out what a losing proposition cynicism is for political power. If everything is fake, or rigged, or exists only to benefit the powerful, then there is no point in acting. But I don't think there is any reason to believe this is true. As far as the law is concerned, Trump's DOJ seems to be doing everything it can to create the impression that the DOJ can do whatever it wants, that individuals can be “unpersoned” and then disappeared, that you only have rights if the DOJ says you do, that the president can make arbitrary decisions about any legal matter. In short what Trump wants the justice system to be is what the cynic claims it already is. But people in the justice system, lawyers, judges and jurors have been rejecting this vision of the institution, because they value justice. Trump's corrupt vision for the law is horrific. It must be resisted, forcefully, consistently, and eagerly by legal professionals and laypersons alike. The way to generate the will to resist is through values. There is a clear tension between what Trump wants to do with the legal system and the value of justice. And it is easy to make a strong argument against the lawlessness that he favors by pointing that out. Contrast that with the position of the cynic. Nothing can be done, the justice system only represents the interests of the powerful, and Trump is the exact same as every other leader. Not only is this view incorrect, people in the justice system do sincerely value justice, its worthless as a basis for making the world a better place. “Everything is terrible and we can't do anything about it” is a horrible sales pitch.

What troubles me so much about those that position themselves in opposition to Trump is the number of people who take the cynical position. This leads to fatal mindset. Since nothing can be done there is not point in trying to do the difficult work of politics. Instead we get people who get on the internet to express their cynicism to people who already agree with them. That is not useful. I think one of the reasons the Civil Rights movement was successful was because it didn't fall into the trap of cynicism. During the Jim Crow era, there was arguably a détente between white supremacists and the rest of the US, in which a war-weary populace looked the other way while white supremacists pretended the system that existed in the Southern US was one of justice. This let the people not affected by the brutality and injustice of the Jim Crow system pretend like there was no unjustice, and it let the white supremacists impose a system of oppression on African Americans. What the Civil Rights movement did was demonstrate that arrangement to be the fiction that it was. A big part of the effort there was to appeal to justice and equality as values. The argument that Civil Rights leaders made to the rest of America was one that appealed to their values. The system was unjust, and you (random white American) should care about that because you care about justice. That is a far cry from the fatal mindset of the cynic and far more compelling than “everything is hopeless.”