Islam & Justice: An Introduction

Justice, ‘adl (also as or related to haqq—‘right,’ qist—‘equity,’ sidq—‘truth,’ and ihsān—‘virtue’ or ‘beneficence’), is one of the foremost themes in the Qur’ān, indeed, it is part of the metaphysical rationale for creation: ‘God created the heavens and earth for a purpose: to reward each soul [i.e. provide just recompense] according to its deeds. They will not be wronged’ (45: 22). Mankind alone is responsible for whatever justice—or injustice—is in the world (10: 44). Divine justice is more than a quid pro quo exchange, at least with regard to merit- or desert-based principles, for God ‘doubles any good deed and gives a tremendous reward of His own’ (4: 40).

The Qur’ānic concern for justice reiterates one of the fundamental demands (as ‘righteousness’) made by God upon man in revelations to the prophets of the Hebrew Bible. The fact that the Qur’ān often refers to terms such as ‘adl (equitable, just), ihsān (beneficence) and ma‘rūf (a generally accepted good) without defining them, suggests a relation to justice prior to the Qur’ānic revelations, thereby re-affirming its importance and reminding its readers of the continuity with earlier revelations. Moreover, this pre- and extra-Qur’ānic reference to justice can also be inferred from the fact that mankind is endowed with a universal and objective moral nature or fitra (incipient or dispositional moral and spiritual awareness). It is fitra that forms the objective basis for the equal treatment of all human beings, linking natural law, human nature, and the divine command to build a just society. Perhaps the quintessential articulation of the importance of justice in the Qur’ān is found in 4: 135:

You who believe, uphold justice and bear witness to God, even if it is against yourselves, your parents, or your close relatives. Whether the person is rich or poor, God can best take care of both. Refrain from following your own desire, so that you can act justly—if you distort or neglect justice, God is fully aware of what you do.

The call to justice is complemented by numerous admonitions against injustice in the Qur’ān.

‘Adl, a noun, comes from the verb ‘adala, which means, among other things, to straighten or modify; to depart or deflect from one (presumably wrong) path to the other (presumably right one) [cf. Q1: 17 on ‘the Straight Path,’ al-sirāt al-mustaqīm, and the literal meaning of sharī‘ah as ‘the way or path’ to water]; to equalize; and to balance, weigh, or be in equilibrium. Among the numerous suggestive synonyms we cite nasīb and qist, rightful share; qistās and mīzān, scale; and taqwīm, straightening. Other synonyms imply the classical Greek virtue sōphrosynē: temperance, harmony, self-mastery, and with respect to action: balance, proportionality and judiciousness, or the Aristotelian principle of the (Golden) Mean between extremes. The semantically rich metaphorical image of ‘the scale’ (mīzān) is used in the Qur’ān with reference to divine justice on the Day of Judgment (yawm ad-Din).

Divine justice by definition perfect, eternal and ideal, we are urged to make every effort to approximate and reflect this metaphysical fact (a capacity owing to fitra), reward or punishment in the next life allotted in accordance with the sincerity and strength of our endeavors to instantiate this divine (ideal) model, one reason for the association of justice with ihsān, beneficence or moral excellence, that is, doing the utmost good. The imperative of justice is both an individual and collective obligation for Muslims, so that while we may distinguish between personal and political virtues, they are necessarily tied together. Mohammad Hashim Kemali provides a succinct summary:

Justice is generally understood to mean ‘putting everything in its rightful place,’ and in the context of Sharī‘ah as ‘giving everyone his or her entitlement.’ Islam’s unqualified commitment to impartial justice is manifested in numerous places in the Qur’ān. We also note the Qur’ānic conception of justice is neither rigid nor rule-bound but open to a variety of considerations. This can be seen in various places in the text of such concepts as ma‘rūf (decent, fair, customary) and ihsān (equity, the doing of good) next to ‘adl (justice). The Qur’ān and Sunnah also integrate intuitive insight (firāsah) and considerations of a just policy (siyāsah shar‘iyyah) into its vision of justice. Moreover, Sharī‘ah validates ijtihād bi’l-ra’y (opinion-based legal judgement) as a basis of adjudication in the absence of a clear text. When the judge adjudicates on the basis of ijtihād, he relies not only on his understanding of Sharī‘ah but also his conscience, insight and experience. This is equivalent to saying that equity and fairness constitute important ingredients of both ijtihād and ‘adl in Islam. Mohammad Hashim Kemali, Shari‘ah Law: An Introduction (Oxford, England: Oneworld, 2008): 199-200.

The Prophet Muhammad appears to have had a keen sense of justice, publicizing widespread inequity and oppression in and around Mecca: a new if not stricter standard of justice was needed to address questions of fairness and exploitation not beholden to tribal status and the privileges of wealth. Whatever dimensions of justice were part of the bedouin ethic of muruwwa in the Jahiliyya, they precipitously declined in the time and place of Muhammad, hence the Meccan revelations regarding the treatment of orphans and the plight of the poor. The Qur’ān evidences the urgency of addressing issues that fall under the rubric of socio-economic or distributive justice, rebuking those who have greedily consumed their inheritance while loving wealth ‘with a passion’ (89: 19-20). Moreover, the enshrinement of zakāt (alms-giving) as the third pillar of practice in Islam makes this duty integral to Muslim identity, effectively institutionalizing a ‘right’ for the needy and deprived to a share in the community’s wealth: no longer would the provision of basic material needs be at the whim or discretion of tribal chiefs. In addition to this compulsory obligation, Muslims of sufficient means are expected to practice voluntary charitable giving (sadaqah). The Qur’ān’s ill-understood opposition to usury (ribā) further illustrates the attempt to deal with problems of distributive justice (as Rosen remarks, the term 'more accurately refers to any form of unjust enrichment').

Historically, questions of political justice were first broached in the Khārijite opposition to the Umayyad caliphate. The Khārijites invoked the doctrine of qadar (power; free will, thus the corollary proposition that each individual is responsible for his or her acts) against the Umayyad rulers’ attempt to legitimize their rule through the principles of ijma‘ (consensus, agreement) and bay‘ah (oath of allegiance), fortified with the theological doctrine of jabr (lit., compulsion; predestination; here in the sense that Umayyad rule was seen as ordained by God). The ‘absolute justice of God’ was one of the five tenets of Mu‘tazilite kalām (theology), unremarkable as such until we learn that it was bound up with debates over the nature of evil and injustice, including the metaphysical and ethical scope of man’s free agency. The Mu‘tazilites even took to referring to themselves as ‘The People of Justice and Unity.’ The pursuit and realization of justice for the Mu‘tazilah was both determined and constrained by the powers of reason (‘aql).

‘The Father of Arab Philosophy’ and Islam’s first significant philosopher, Abū Yūsuf Ya‘qūb ibn Ishaq al-Kindi (d. c. 866) held justice to be the central virtue owing to its balancing and coordinating functions vis-à-vis other (principally classical Greek) virtues, thereby demonstrating the integration of Peripatetic and Neoplatonic ideas into a distinctively Islamic philosophy. Islam’s first truly systematic philosopher, al-Fārābī (c. 870-950), envisioned the ideal Islamic polity portioning such goods as security, wealth, honor and dignity according to a desert principle of distributive justice. Rational justice, formulated in terms of a social contract theory inspired by Plato’s Republic and Aristotle’s Ethics, as well as the Islamic sciences generally, was the center point of Ibn Sina’s (Avicenna) (979-1037) political scheme to secure the common welfare from a pool of basic resources. For Ibn Rushd (Averroes) (1126-1198), justice is the sum and highest of all virtues of man as a citizen of the polity. Furthermore, it inheres in the fulfillment of role responsibilities and duties in a social division of labor structured according to the standards and strictures of philosophy (falsafah). While some virtues, like wisdom and courage, are class-specific, justice is pertinent to all citizens, provided they perform the vocation for which they are fitted ‘by nature.’

Justice in jurisprudential terms entails in the first instance equal treatment of all before the law (fiqh). With the sharī‘ah as lodestar (i.e., God’s Will in ideal and abstract form), both ethics and law in Islam approach justice through the doctrinal formula of ‘commanding right and forbidding wrong’ (al-amr bi’l-ma‘rūf wa’l-nahy ‘an al-munkar). In short, fiqh (Islamic jurisprudence), as the human endeavor to understand and interpret God’s Will, is a system of ethico-legal obligation formulated in imperative or obligatory (amr) and prohibitive (nahy) terms, with all human actions exhaustively classified as mandatory (fard or wājib), encouraged (mustahabb or mandūb), permissible (halāl or mubāh), discouraged (makrūh), or forbidden (harām). Procedural justice in Islam tends toward a communalist conception of personalism rather than corporatist and administrative principles insofar as trust is placed in the ‘just judge’ or ‘just witness,’ trumping the judicial system as such. In other words, the status and personal qualities of juridical actors are paramount and this might be charitably described as one of the implications of a religious formulation of virtue jurisprudence.

The Islamic modernism or ‘reformism’ of a Muhammad ‘Abduh (1849-1905) or a Muhammad Rashīd Ridā (1865-1935) devotes more attention to issues of individual freedom and national self-determination than institutional and public policy questions regarding the mechanics of distributive justice. Exemplified in the works of Sayyid Qutb (1906-1966), the Nahdah’s (renaissance; rebirth) second generation of Muslim intellectuals (i.e. after World War II) brought back to the political and economic foreground pressing questions of distributive justice, albeit in a manner that lacked the complete historical compass and ethical range of earlier philosophical and jurisprudential discussions. Most recently, Muslim scholars have persuasively argued for the relevance of Islamic conceptions of justice and jurisprudence to the ideals and values intrinsic to international human rights, such rights being the primary means for realizing and exploring principles of international justice. The Islamist social organization and political party Hizbullāh in Lebanon, and what might be called its Sunni counterpart Hamas in the Occupied Palestinian Territories, have made the pursuit of social justice a religious obligation central to their welfare work and political platforms. In Turkey, we find the (post-?) Islamist Justice and Development Party (AK Party) proclaiming (in its political program) a commitment to laws “based on [the] fundamentals of universal justice and human rights.”

Further Reading: Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford, England: Oneworld, 2001); Mashood A. Baderin, International Human Rights and Islamic Law (New York: Oxford University Press, 2003); Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge, UK: Cambridge University Press, 2000); Sohail H. Hashmi, ed., Islamic Political Ethics: Civil Society, Pluralism, and Conflict (Princeton, NJ: Princeton University Press, 2002); Albert Hourani, Arabic Thought in the Liberal Age: 1798-1939 (Cambridge, UK: Cambridge University Press, 1983 ed.); Majid Khadduri, The Islamic Conception of Justice (Baltimore, MD: Johns Hopkins University Press, 1984); Ann Elizabeth Mayer, Islam and Human Rights (Boulder, CO: Westview Press, 4th ed., 2007); Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge, UK: Cambridge University Press, 2005); Lawrence Rosen, The Justice of Islam (New York: Oxford University Press, 2000); and, Amr G.E. Sabet, Islam and the Political: Theory, Governance and International Relations (London: Pluto Press, 2008).

A different version of the above is found in Juan E. Campo, ed., Encyclopedia of Islam (New York: Facts on File/Checkmark Books, 2009): 416-418.

Divine Law (Sharī‘ah) & Jurisprudence (fiqh) in Islam

Having recently introduced the subjects of constitutionalism and democracy vis-à-vis Islam, I thought it would help to say a few basic things about Sharī‘ah and fiqh, in particular as they have bearing upon our concerns about human rights and democracy, concerns of course common to Muslims and non-Muslims alike. Perhaps needless to say, there persists an inexcusable lack of fundamental understanding among non-Muslims about the meaning of divine law and jurisprudence in Islam. And it should be said that not a few Muslims may possess a less than sophisticated knowledge of Sharī‘ah and fiqh as well, as contemporary Muslim scholars have made plain. Whatever the occasional "wisdom of crowds" or the truth captured by Condorcet's "jury theorem" (which provides some theoretical support for democracy...or perhaps not), the hoi polloi or masses, by definition, are not intellectuals, this being one of several reasons defenders and critics alike have understood the importance of formal and informal education in democratic polities if they are to have any realistic prospect for long-term survival, let alone flourishing, and accounts for the fact that democracies can never, or at least should not be, purely "participatory" (let alone 'deliberative'), that is, allow for literal "rule by the people" (or, literally, 'popular sovereignty'), even if we find sufficient reason here and there or now and again to expand the parameters of participation and deliberation. In other words, democracies in the (post-) modern world are necessarily "representative."

We first introduce Sharī‘ah, followed by a sketch of the meaning of fiqh, both of these being basic and introductory treatments of their respective subjects. For further exploration interested readers should consult the works listed under "Jurisprudence" in my Islamic Studies Bibliography.

Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one's life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’

The function of Sharī’ah is here analogous or similar to that of Natural Law intimations among the Stoics and both religious and secular Natural Law doctrine as it developed from and after Grotius. Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’

We might describe the function of Sharī‘ah along the order of a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (New Haven, CT: Yale University Press, 1993). In this account, intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Platonic Forms—like the Sharī‘ah—are (is) fairly indeterminate, while nonetheless serving as normative, intuitive, and largely nonpropositional foundations (in theory, accessible to any Muslim) for constructing (propositional, hence legal) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing principled models of determinate social orders, none of which fully realizes Justice, and all of which endeavor to approach Justice, succeeding by degrees. What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: ‘The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.’ Sharī‘ah is like the Platonic Form in being universal, abstract, and ‘indeterminate,’ and thus cannot directly serve as a normative standard (i.e., any interpretation of the Divine Will needs religiously rationalized and principled justification by way of textual hermeneutics and exegesis). This is perhaps one reason Norman Calder writes that, ‘in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.’ Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts. As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means that it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such, or positive law, cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its specific principled and propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which transcends positive law; discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of acquiring (intuitive or nonpropositional) insight into divine law. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic terms, a dialectic between propositional knowledge and ‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ after Shihāb al-Dīn Suhrawardī: ‘The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking.’ Like Socrates in the agora, Islamic scholars (jurists, theologians and philosophers) can examine and refute propositions that claim to fully or finally capture the nature or essence of the Divine Will, that pretend to fully embody or ‘positivize’ the Sharī‘a. The jurist’s fallible, limited, and historical understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense.

And it is fitra, the Islamic term that designates our primordial inclination or general predisposition to the good as a constituent feature of human nature, that allows individual qua individuals, to have insight into the Divine Will (and thus functions like soul memory in Platonic thought: permitting individual intuitive awareness, however dim or partial, into the Good; this insight is what Socrates set out to awaken in the interlocutors of the dialectical dialogues). In fact, fitra can serve as the Islamic equivalent of individual conscience, according individuals in effect the right of principled objection to interpretations of Sharī‘ah that violate their sincere and sustained endeavors (made in the context of the Islamic tradition) to realize this dispositional awareness of ‘the Good,’ the Divine Will or Sharī‘a.

That said, consider the following comments from Professor Haider Ala Hamoudi, as a ‘legal realist,’ from his blog ‘Islamic Law in Our Times: A Realistic Assessment of Islamic Law in Today’s World’ (http://muslimlawprof.org/), as they help us appreciate the difference between concern with the ‘conceptual’ and focus on the ‘empirical’ or how, in practice, the normative is entangled or even conflated with the descriptive (what others term 'fact/value' entanglement):

In Islamic studies departments, there's this notion of shari'a as this sort of idealized, highly stylized logic driven system that is sort of somewhere in the sky that nobody can see, and then there's fiqh, which is any given juristic interpretation of this beauty written down on paper always with the flaws of that jurist, and then there's actual law, which bears no necessary relationship to either. [….] Certainly shari'a and fiqh, the ideal and then the imperfect reflection of the ideal (still not real) is a favorite of this group, their law review articles go to great lengths to explain the difference between the two, because one must understand how this all works, this lovely thing up there in the sky, its shadow in the academy and then if you're lucky they'll attempt to relate all of that to reality in a way that is, ummm, perplexing. [….] [A]s with any law or rule of social order, when you want to understand what the shari'a is, you have to see what the shari'a actually does. What role in the social order? How? Who has the authority to declare it? Where and when does it conflict with national law and how do Muslims of various sorts react to that? Where is it important to most? Where do some care and not others? THAT is law.

And in one sense that is true enough, but in principle and practice we need to keep in mind the necessary metaphysical, logical or conceptual, and legal distinctions that make a difference to our understanding of what is normative, prescriptive and descriptive (this allows, for instance, appreciation for the fact that what we might describe in any given case as normative or prescriptive is contingent or contestable and that there are may be principled differences of opinion--and arguments to be made--as to what is to properly count as prescriptive or normative).

So, for example, we should bear in mind the normative argument made by Abdullahi An-Na‘im:

When observed voluntarily, Sharī‘ah plays a fundamental role in shaping and developing ethical norms and values that can be reflected in general legislation and public policy through the democratic political process. But…Sharī‘ah principles cannot be enacted and enforced by the state as public law and public policy solely on the grounds that they are believed to be part of Sharī‘ah. If such enactment is attempted, the outcome will necessarily be the political will of the state and not the religious law of Islam. The fact that ruling elites sometimes make such claims to legitimize their control of the state in the name of Islam does not mean that such claims are true. The fact that the state is not a religious institution is the historical experience and current political reality of Islamic societies. [….] [D]ispelling the dangerous illusion of an Islamic state that can enforce Sharī‘ah is necessary for legitimizing and implementing the principles and institutions of constitutionalism, human rights, and citizenship in Islamic societies. Abdullahi An-Na‘im, Islam and the Secular State: Negotiating the Future of Sharī‘a. (Cambridge, MA: Harvard University Press, 2008).

Finally, we will grant the last word to Mohammad Hashim Kamali as evidence for the proposition that there need not be any inherent conflict—let alone contradiction—between Sharī‘a and democratice theory and praxis. This is true despite the historical fact that ‘with reference to justice and basic rights…the traditional fiqh in the areas of al-ahkām al-sultāniyyah (principles of government) and siyāsah shar‘iyyah (Sharī‘ah) has fallen short of reflecting the Qur’ān’s comprehensive conception of justice in the sphere particularly of rights and liberties.’ The following is a summary of points made by Kamali on behalf of our claim:

1. Notwithstanding certain reservations, some Muslim commentators have noted the Islamic credentials of formal constitutions in present-day Muslim countries; these constitutions, on the whole, pay greater attention to basic rights and liberties, the foundations of accountable and representative government, and as such tend to be in greater harmony with the basic principles of Islam. [….]

2. In response to the question whether a formal constitution was Islamic, and whether any objectionable elements therein invalidated the whole of a constitution, Muhammad Rashīd Ridā (d. 1935) issued a fatwā that may be summarized as follows: If a constitution seeks to establish a good government, defines the limits of power and ascertains criteria of accountability, then it would be in harmony with Islam. Should there be an instance of disagreement with any of the principles of Islam, only that element should be addressed and amended. For after all many of the great works of fiqh also contain errors, but this does not invalidate the whole of the endeavor or manual in which such an error might have occurred. [….]

3. [Despite] a lack of consensus over the basic definition of “right” in the
Islamic discourse, the word “haqq” is often said to convey a basic meaning
regardless of definitions. Haqq (right) in the Qur’ān occurs in several places and carries a variety of meanings, which include justice, right as opposed to falsehood, a legal claim, an obligation, something that is proven and an assigned portion. The many meanings of haqq in the Qur’ān may be said to be a cause sometimes of ambiguity, even misunderstanding. For instance the shared meaningof haqq between a right and an obligation has persuaded Western Islamologists to draw…the unwarranted conclusion that Islam recognizes only obligations but no right inhering in the individual. This is tantamount to turning a blind eye to the affirmative stance of the Qur’ān and Sunnah on the rights of the individual, including his right to life, right to justice, right to equality, right of ownership, rights to sustenance and support within the family, parental rights, right of inheritance and so forth. Islam’s commitment to justice and its advocacy of human dignity could not be sustained without the recognition of rights. [….] We may add…that Islam’s perspective on rights and liberties is somewhat different from that of constitutional law and democracy and their underlying Western postulates. Islam, like other great religions, is primarily concerned with human relations. In ordinary life, people do not live primarily in terms of rights against others but in terms mutual relationships involving love, compassion, self-preservation and self-sacrifice in pursuit of happiness and peace for themselves and their loved ones. The great religious traditions teach people, with good reason, that such things are not a matter of course nor are they always a question of rights. This would partially explain why most religions tend to emphasize moral virtue, obligation, love and sacrifice even more than the individual’s rights and claims. [….]

4. [T]here are differences between the theistic view of right and freedom when compared to what they mean in a secular context, but we also note that taking a totally secular approach to them is not advisable in the Islamic context. We believe that human rights and democratic values would benefit if religious values are also taken into consideration. [….] For the religious reformers to carry forward their struggle for democracy and human rights, they should be seen as authentic articulators of change espousing an alternative from within rather than without the tradition. [….]

5. For moderate Muslim thinkers, Islam’s exhortation to justice does not preclude people’s interpretation of it. On the subject of women’s rights, for example, it is suggested that women’s isolation from public life has been due to backward customary impositions on the Qur’ānic discourse. Thus what is needed is to restore women’s originally independent status in the Qur’ān, and provide a social context where women can exercise their freedom and independence. [….] Political parties and associations are permitted, and Islam stands for consultative and constitutional government with limited powers subjected to the rule of law. Basic rights and freedoms must be protected and government is accountable to the people. Mohammad Hashim Kamali, Sharī‘ah Law: An Introduction (Oxford, England: Oneworld, 2008).

Fiqh: understanding, knowledge; Islamic jurisprudence (law) as derived from Sharī‘ah (lit., the way; divine law, God’s will). Strictly speaking, Sharī‘ah is perfect: immutable and infallible, God’s will as abstractly and ideally understood, while fiqh is fallible and changeable, the product of a human attempt to understand that which is divine. There is, in other words, a logical, conceptual and practical distinction between Sharī’ah and fiqh, however much the latter is inspires the former. Nonetheless, and in the words of Knut S. Vikø, ‘It is more common to use “Sharī’a” as a name for the Islamic legal rules that we actually see applied in our human existence. Then one distinguishes between fiqh as the science used to derive the legal rules from their sources and the Sharī’ah as the result of this endeavor, the actual body of laws and rules in all their variations and internal inconsistency.’ As Norman Calder observes, there are two broad types of jurisprudential literature: usūl al-fiqh (‘roots’) and furū‘ al-fiqh (‘branches’) (there is a third type, the tabaqāt—biographical—genre which is common beyond fiqh proper and not treated here). Islamic law itself is the product of the application of usūl al-fiqh (the ‘roots’ or sources of law), the principles and methods through which practical rules are developed from the tradition’s foundational sources: a) the Qur’ān, b) the Sunnah, (or ahādīth) c) ijmā‘ (consensus) of Muslim scholars on a legal rule about a topic not explicitly covered in the aforementioned sources (Shī‘ī jurists deny this is possible; and differences arise as to the possible value of ‘implied’ or ‘silent’ consensus, with Hanafī jurists speaking in its favor), and d) analogy (qiyās), involving reliance on precedent. In conjunction with these sources, subsidiary or supplemental presumptions and principles may aid the jurist in deriving interpretive rules: istihsān (considerations of equity and the application of discretion or preference, the ratio legis or ‘effective cause of the ruling’ differing from one obtained strictly through qiyās); ‘unregulated interest’ or masālih mursalah, explained by Wael Hallaq as arising in relation to a rationally suitable benefit motivated by public interest ‘that is not sustained by textual evidence,’ later this method of reasoning was approved provided ‘it could be shown that the feature of public interest adopted in a case was suitable (munāsib) and relevant (mu‘tabar) whether to a universal principle of the law or to a specific…piece of textual evidence’ (Hallaq); and istishāb, the rational presumption of continuity. There are four major schools (madhhabs) (five, when we add the Shī‘ī) of Islamic law: the Hanafī, the Hanbalī, the Mālikī and the Shāfi‘ī, along with a fair number of other teachers and ‘schools’ (e.g. the Zāhirī, Zaydī, Ibādī, and Ismā‘īlī) throughout Islamic history. In Twelver Shī‘ism, the Usūlī school of jurisprudence predominates. After Shāfi‘ī, the jurist’s decision in a new case of law must fall into one of five categories: the obligatory (wājib), the recommended (mandūb), the permissible (mubāh), the prohibited (harām), or the repugnant (makrūh). Calder defines the scope of the second type of jurisprudential literature:

[Furū‘ al-fiqh] sets out…concepts and rules that relate to conduct, and arguments about them. Its headings are purity, prayer, fasting, alms, pilgrimage…and then such topics as warfare, marriage, divorce, inheritance, penalties, buying and selling, judicial practice, etc., in variable order. The whole is a conceptual replica of social life, not necessarily aspiring to be either complete or practical, but balanced between revelation, tradition and reality, all three of which feed the discussion and exemplify the concepts.

Thus described, this literature is reminiscent of both Mishnah and Talmud in Judaism.

Governor Mark Sanford faces the music

In a genuinely remarkable piece of American political theater, Governor Mark Sanford of South Carolina admitted that he had not in fact taken a hike on the Appalachian Trail during a five-day absence, but rather conducted an extramarital affair in Argentina. Extensive news coverage abounds, among other places, in The State (Columbia, S.C.), The Washington Post, and The New York Times.

Even more remarkably, Mark Sanford has a theme song. With very few modifications, the lyrics from "Don't Cry for Me Argentina," the climactic song from the Andrew Lloyd Webber/Tim Rice musical, Evita, come very close to describing Governor Sanford's story:

It won't be easy, you'll think it strange
When I try to explain how I feel
that I still need your love after all that I've done

You won't believe me
All you will see is a guv you once knew
Although he's dressed up to the nines
At sixes and sevens with you

I had to let it happen, I had to change
Couldn't stay all my life down at heel
Looking out of the window, staying out of the sun

So I chose freedom
Running around, trying everything new
But nothing impressed me at all
I never expected it to

Chorus:
Don't cry for me Carolina
The truth is I never left you
All through my wild days
My mad existence
I kept my promise
Don't keep your distance

And as for fortune, and as for fame
I never invited them in
Though it seemed to the world they were all I desired

They are illusions
They are not the solutions they promised to be
The answer was here all the time
I love you and hope you love me

Don't cry for me Carolina

Repeat chorus

Have I said too much?
There's nothing more I can think of to say to you.
But all you have to do is look at me to know
That every word is true

Neda ندا

This video is as compelling as it is graphic:

In death she is being called Neda ندا, which in Farsi means the voice or the call.

Islamic Studies: A Bibliography

This bibliography for Islamic Studies is the last of our compilations covering religious worldviews in the Directed Reading series. We thus have bibliographies for Hinduism, Classical Chinese Worldviews, Buddhism, Judaism, Christianity, and Islam here at Ratio Juris. The length of the latest list is owing to an ardent professional and personal interest in Islamic Studies, particularly Islamic philosophy and theology, Islamic mysticism (Sufism), and Islamic art and architecture. The fact that I can speak of a "professional interest" in this subject is owing largely to the remarkable generosity, kindness and guidance of Oliver Leaman, Professor of Philosophy and Zantker Professor of Judaic Studies at the University of Kentucky. Oliver Leaman is a prolific philosopher, both within Judaic and Islamic philosophy and outside his areas of specialization (e.g., books on death and dying, in film studies, and on friendship), having written or edited some two dozen works of the highest caliber. I want to avail myself of this forum to thank him publicly for giving me the opportunity to publish in this field, beginning with an invitation to contribute to a groundbreaking work in the discipline, namely, the two volume Biographical Encyclopedia of Islamic Philosophy (2006).

How Do We Treat Our Veterans?

Early this morning, unable to sleep, I watched this video broadcast on our local community television. Aaron Glantz is the author of How America Lost Iraq (2005), and the subject of this talk is his latest book, The War Comes Home: Washington's Battle Against America's Veterans (2009). This lecture was sponsored by the Walter H. Capps Center for the Study of Ethics, Religion and Public Life at the University of Califiornia, Santa Barbara. Please view the podcast, but in any case, consider the book absolutely essential reading, part of one's myriad civic obligations.

Islam & Constitutionalism: A Modest Introduction

Minimally, constitutionalism means government can and should be legally limited in its powers, and that authority is derived from and depends upon those limitations. Such constitutionalism, in principle when not in practice, is part and parcel of Islamic history. Indeed, in this minimal sense, all nation-states are “constitutional” states. In the Muslim world today, however, the baseline for discussion is liberal and, therefore, democratic constitutionalism, including the exemplary relevance of the archetype of Islamic constitutionalism: namely, the Charter of Medina, Muhammad’s compact with the Muslim and Jewish communities that constituted the first Islamic polity.

Sociologically speaking, a constitution is a “co-ordinating convention” that establishes “self-regulating” institutions that both “enable” and “constrain” democratic behavior (indeed, the ‘enabling’ function of ‘constraints’ is well explained by Stephen Holmes in Passions and Constraints: On the Theory of Liberal Democracy, 1995). As Russell Hardin has made clear, social contract theories or analogies invoked to explain the mechanisms of constitutional construction are misleading inasmuch as “agreement” or “tacit consent” is not a condition for accepting the constitutional order; mere acquiescence will suffice (cf. the response of the anti-Federalists to the U.S. Constitution). This renders the conception of “popular sovereignty” a fictional rhetorical contrivance or metaphor which, in turn, has important consequences for Islamic political theory: one oft-cited reason for Muslim hostility to liberal constitutionalism is the notion of popular sovereignty, seen as infringing upon or contradicting the sovereignty that properly belongs to God. In any case, the doctrine of sovereignty as such has never had the “absolutist” implications sometimes imputed to it and thus should not be construed as contradicting the sovereignty of God. A democratic political and/or legal notion of sovereignty can play a role in constitutionalism if the Islamic conception of God’s conferral of “vice-regency” implies some sort of individual sovereignty. Here sovereignty (in a distributive sense) entails according man theological/metaphysical freedom (e.g., free will), which is logically prior to any notion of rights/liberties set forth in a constitution. The citizen-sovereign in a democracy—through delegation or representation—would thus make the laws, be bound by those laws, and yet somehow remain “above” the law: in acts of civil disobedience, in amending or reforming the constitution, or in a constitutional revolution. Conceding this account, the literal reading of popular sovereignty (in a collective sense) commits the (informal) logical fallacy of composition.

Among the criteria for a liberal constitution are limits on majority decision-making; recognition of human and civil (and increasingly, social and economic) rights (liberties); an independent and impartial judiciary to guarantee and protect these rights (including judicial review); and separation of executive, legislative and judicial powers. And among the concepts within the Islamic tradition suggestive of or compatible with constitutionalism are shūrā (consultation), ijmā‘ (consensus), ijtihād (as independent legal reasoning), maslahah (public welfare), majlis (tribal council; public audience granted the caliph), bay‘ah (an unwritten contract or pact involving the recognition of, and allegiance to, political authority), and wilāyah (custodianship, guardianship, trusteeship).

In the 19th century Ottoman Empire, Egypt and Tunisia, constitutions were honored in the breach. Autocracy, patrimonialism, tribalism, and colonialism have left their indelible marks on periodic and protracted efforts at liberal reform and the democratic aspirations of Muslims. In the second half of the 20th century, socialist and nationalist ideologies were added to the mix. That said, and keeping the Islamic Middle East and North Africa in mind, one can endorse Noah Feldman’s remark “that the world is littered with beautifully drafted constitutions that have been ineffective or ignored in practice.” The Iranian Constitutional Revolution (1905-11) prefigured much of the potential and some of the problems that were to attend later democratic experiments, most conspicuously, the Iranian Revolution of 1978-79. The Constitution of the Islamic Republic of Iran contains ostensibly democratic features: in Malise Ruthven’s words, it is a “hybrid of Islamic and western liberal concepts.” But Ayatollah Khomeini’s conception of the “guardianship of the jurist” (vilayāt-i faqī) ensconced in the Constitution by way of the “chief jurisconsult” and the 12-member Council of Guardians, has blocked democratic methods and processes, enshrining an insidious form of religious authoritarianism.

Feldman contends the constitutional monarchies of Jordan and Morocco “represent the best hope for development of Islamic democracy in the Arab world.” The machinations of the military in Pakistan, Algeria, and--less frequently and less confidently--in Turkey, can make mincemeat of constitutional law; nonetheless, Turkey is rightly described as an “emerging democracy.” The constitutional monarchy of Malaysia is betwixt and between authoritarianism and democracy, while Indonesia’s democratic evolution has relied on well-crafted and well-timed constitutional reform.

Constitution-making has been taking place in Iraq, Afghanistan, and in the Palestinian occupied territories courtesy of the Palestinian National Authority. With regard to the latter, after enacting the proto-constitutional and provisional Basic Law, a constitutional committee has completed its third draft [when this was first written] of the Constitution for an independent and sovereign Palestinian State (subject to further amendments). Islam is declared the official religion of the future Palestinian State, while the Constitution guarantees “equality in rights and duties to all citizens irrespective of their religious beliefs.” The “principles” of “Islamic sharī‘ah” are termed “a major source of legislation;” perhaps not unlike the way in which principle(s) of Natural Law have functioned in some Western constitutions.

Further Reading:

• Amanat, Abbas and Frank Griffel, eds. Shari‘a: Islamic Law in the Contemporary Context (Stanford, CA: Stanford University Press, 2007)
• An-Na‘im, Abdullahi Ahmed. Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008)
• Bayat, Asef. Making Islam Democratic: Social Movements and the Post-Islamist Turn (Stanford, CA: Stanford University Press, 2007)
• Black, Antony. The History of Islamic Political Thought: From the Prophet to the Present (New York: Routledge, 2001)
• Black, Antony. The West and Islam: Religion and Political Thought in World History (New York: Oxford University Press, 2008)
• Dahl, Robert A., Ian Shapiro and José Antonio Chiebub, eds. The Democracy Sourcebook (Cambridge, MA: MIT Press, 2003)
• El Fadl, Khaled Abou. Speaking in God’s Name: Islamic Law, Authority and Women (Oxford, England: Oneworld, 2001)
• El Fadl, Khaled Abou. et al., Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2004)
• Enayat, Hamid. Modern Islamic Political Thought (Austin, TX: University of Texas Press, 1982)
• Esposito, John L. and John O. Voll. Islam and Democracy (New York: Oxford University Press, 1996)
• Fadel, Mohammad. “Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights,” Chicago Journal of International Law, Vol. 8, No. 1, p. 1, 2008; University of Toronto, Legal Studies Research Paper No. 981777. Available: http://ssrn.com/abstract=981777
• Fadel, Mohammad. “The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence, Vol. 21, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-08; University of Toronto, Legal Studies Research Paper No. 977206. Available: http://ssrn.com/abstract=1085347
• Feldman, Noah. After Jihad: America and the Struggle for Islamic Democracy (New York: Farrar, Straus and Giroux, 2003)
• Hamoudi, Haider Ala. “Baghdad Booksellers, Basra Carpet Merchants, and the Law of God and Man: Legal Pluralism and the Contemporary Muslim Experience,” Berkeley Journal of Middle Eastern and Islamic Law (Inaugural Issue), Vol. 1, No. 1, 2008; University of Pittsburgh Legal Studies Research Paper No. 2008-14; Islamic Law and Law of the Muslim World Research Paper Series at New York Law School 08-26. Available: http://ssrn.com/abstract=1128293
• Hardin, Russell. Liberalism, Constitutionalism, and Democracy (Oxford, UK: Oxford University Press, 1999)
• Holmes, Stephen. Passions and Constraints: On the Theory of Liberal Democracy (Chicago, IL: University of Chicago Press, 1995)
• Kamali, Mohammad Hashim. Shari‘ah Law: An Introduction (Oxford, England: Oneworld, 2008)
• Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics (Boulder, CO: Westview Press, 4th ed., 2007)
• Sabet, Amr G.E. Islam and the Political: Theory, Governance and International Relations (London: Pluto Press, 2008)
• Vikor, Knut S. Between God and the Sultan: A History of Islamic Law (New York: Oxford University Press, 2005)
• Wing, Adrien K. “The Palestinian Basic Law: Embryonic Constitutionalism,” 31 Case Western Reserve Journal of International Law 383 (1999)
• Wing, Adrien K. and Hisham A. Kassim. "Hamas, Constitutionalism, and Palestinian Women,” University of Iowa Legal Studies Research Paper No. 08-21; Howard Law Journal, Vol. 50, No. 2, 2007. Available: http://ssrn.com/abstract=1130219
• Wing, Adrien K. and Hisham A. Kassim, “The Future of Palestinian Women's Rights: Lessons from a Half-Century of Tunisian Progress,” University of Iowa Legal Studies Research Paper No. 08-22; Washington and Lee Law Review, Vol. 64, 2007; Islamic Law and Law of the Muslim World Paper No. 08-40. Available at SSRN: http://ssrn.com/abstract=1130413
• Wing, Adrien K. and Varol, Ozan O. “Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example,” University of Iowa Legal Studies Research Paper No. 08-17; Texas International Law Journal, Vol. 42, No. 1, 2007; Islamic Law and Law of the Muslim World Paper No. 08-33. Available at SSRN: http://ssrn.com/abstract=1130262

Muslims & Democracy: A Précis

Historically, an Islamic rhetorical idiom has legitimated many a manner of governance: from the despotic to the benign. And the bountiful intellectual fruits of Islamic traditions—philosophical, theological, jurisprudential, mystical—are capable of justifying a wide array of political models and forms of political behavior, including models and forms of democratic provenance. Professors, pundits, policy makers, and the public in their wake, have argued or assumed that Islam and democracy are inherently incompatible, that cultural and political properties intrinsic to Islamic civilization preclude the birth of anything remotely resembling “Islamic democracy.” Yet empirical studies conclude that such culturalist explanations “have little relevance for the emergence and durability of democracies” (Przeworski, et al., in Dahl, Shapiro, Cheibub, eds.).

Today a clarion call from Muslims around the world is heard on behalf of the virtues of democratic values and principles, methods and processes. The overwhelming preference of the “Arab street” and the majority of non-Arabic Muslims is for ballots (‘paper stones’) not bullets, as militant, jihadist Muslims prove the exception to the rule. In short, Islamic democracy is not an oxymoron.

Minimalist or thin theories of democracy focus on the electoral components of the democratic process, the desiderata being free and fair, multiparty elections by secret and universal ballot. An electoral democracy is a constitutional order in which the (chief) executive and legislative offices are filled through regular and competitive elections. In Przeworski’s words, “In the end, the miracle of democracy is that conflicting political forces obey the results of voting.” By these standards, for example, Turkey, Bangladesh, and Indonesia are democratic, as are several states of the former Soviet Union; Egypt and Malaysia are quasi- or semi-democratic; Jordan and Morocco democratic by fits and starts; Algeria has democratic pretensions, as does Kuwait and Bahrain; interestingly, Iran also scores high on this electoral scorecard. Even Saudi Arabia is unable to resist the reformist clamor for electoral democracy: the Kingdom’s cabinet has announced that it will hold its first elections for municipal councils. As various fora of dialogue or “talking shops” are essential forms of democratic participation, the fact that the Saudi leaders (in particular, the Crown Prince Abdallah, de facto ruler of the kingdom), are talking about reform with “reform groups” perhaps portends changes on the desert horizon, however distant.

Problems persist: executive offices are often uncontested; opposition parties face unwarranted if not unreasonable government restrictions (and not a few parties are ‘banned’ for this or that reason), with often limited access to media. In addition to voting fraud, authoritarian elites do not hesitate to resort to insidious forms of “electoral engineering” to achieve favorable electoral outcomes. In this case, the maxim “something is better than nothing” holds. Perchance international election monitoring can play a more effective part in preventing or discouraging attempts at electoral manipulation.

As a consequence of electoral participation, some of the more militant Salafi Islamists have formed alliances and coalitions with both Islamic and “secularist” parties and movements, often renouncing the methods of violence in ending the campaign for an “Islamic revolution.” Denying Islamists participation in electoral politics can have deleterious results: as in Algeria, when the Islamic Salvation Front (FIS) resorted to rebellion and violence; other times it simply compels Islamist to engage in the politics of civil society, as with the Muslim Brotherhood in Egypt. Islamist parties demonstrating a commitment to democratic principles and procedures—i.e., to play by the “rules of the game”—are found, for example, in Tunisia, Algeria, Morocco, Egypt, Palestine, Jordan, Lebanon, Turkey, Malaysia, and Indonesia, as well in most of the republics of the former Soviet Union. Indeed, both Hamas and Hezbollah have evidenced a substantial preference for and appreciation of the value of democratic political participation

The growth and consolidation of democracy in the Islamic world faces enormous obstacles: authoritarian political traditions and communalist orientations (including recalcitrant ‘ulamā’ with medievalist responses to the conditions of modernity); histories of colonialist rule and imperialist interference; the need to implement economic reforms by way of integration into the global economy; by-products of nationalist struggles that lacked democratic priorities; economically bloated and inefficient States with excessive military expenditures; to list the more egregious difficulties. Fortunately, the level of economic development provides little information about the chances of transition to democracy, although per capita income does correlate with the sustainability of democratic regimes. And political economists and democratic theorists alike well know that rentier states pose peculiar problems for democratic development. Of course “thick,” more substantive participatory and deliberative democratic theories elaborate a motley of social and institutional conditions that serve as prerequisites of, or that are at least conducive to, full-fledged democratic consolidation and flourishing. When or if the variegated potential forms of Islamic democracy do develop, the corresponding criteria of assessment will be more stringent, and the eudaimonistic consequences more satisfying, than the “thin” electoral variety.

One of the foremost students of civil society, John Keane, suggested in his book, Reflections on Violence (1996), “that Islam, the most socially conscious of world religions, can partly overcome the transition-to-democracy dilemma by concentrating the considerable sum of its energies on the nooks and crannies of civil society.” Both prescriptive and prescient, the prescriptive part was belied by the fact that, descriptively, Muslims from many walks of life had, for some time already, been actively engaged in the arena of civil society, carving out a social space for a “politics of identity” that strove to be at once moral/religious, nonviolent, egalitarian, welfarist, justice-seeking, and democratic. Keane’s remark remains prescient insofar as few observers outside the Islamic world had yet to acknowledge the presence of a vigorous civil society in many of the Muslim majority countries.

Civil society is located between the intimate/private spheres of familial life, and the various organs of the State: administrative, legislative, judicial, economic, etc. In large measure, it is beholden to those selfsame institutions, for the State serves to “frame” or structure social relations outside its immediate purview (e.g., the legal system). The nature, complexity and differentiation of power relations, nodes and networks account for the interdependence and feedback loops between the State and civil society. The institutions, associations, organizations, gathering places, and social movements on the terrain of civil society act as a Deweyan schoolhouse for democracy, or as a dress rehearsal for more traditional forms of political participation. While authoritarian regimes routinely attempt to “de-politicize” or “privatize” (‘atomize’) relations within society, the modern Leviathan finds it difficult to implement this divide-to-conquer strategy, that is, to be truly totalitarian, to manipulate and control the entire spectrum of activities and dialogue constitutive of the various “publics” in civil society.

The moral, political and cultural capacities of actors in civil society are based on norms of trust, reciprocity, friendship, commitment, and the like that are metaphorically termed “social capital.” The strength and circulation of this social capital signals both the desire and potential for democratization (i.e., as a variable in the transition from non-democratic to democratic rule) and may be the very locus of “democracy” in societies with governments that suffer from democracy deficits.

Delineating the lineaments of civil society involves (1) reconfiguring the boundaries of the political, e.g.: the samizdat, the Workers’ Defense Committee (KOR), the “Flying University” (TKN) in the former Soviet Union and East-Central Europe; CORE, the Highlander Folk School, Citizenship Schools, and SNCC of the civil rights era; the Free Speech movement, SDS, and countercultural communes, cooperatives, and clinics of the 1960s; the Beijing Spring of 1989; the United Democratic Front of South Africa; and the comunidades de base of Liberation Theology in Latin America—it entails (2)reconceptualizing the nature of power, e.g.: the intellectuals of the Velvet Revolutions (Vaclav Havel, Adam Michnik, et al.); Gandhian political theory; post-Gramscian Marxism (Carl Boggs); Michel Foucault; the late Fundi Green theorist Rudolf Bahro; and Johan Galutung—and, finally, it includes (3) an appreciation of the financial systems, capital flows, markets, and property rights essential for the material resources that sustain (as both cause and product) civil society (cf.: Henry and Springborg’s Globalization and the Politics of Development in the Middle East, 2001).

In the Middle East (keeping in mind that the vast majority of Muslims reside outside this region), civil society consists of “a mélange of associations, clubs, guilds, syndicates, federations, unions, parties and groups [that] come together to provide a buffer between state and citizen.” (Augustus R. Norton) Professional syndicates (niqabat) are particularly strong in Egypt, Tunisia, Morocco, Sudan, and among the Palestinians. These associations (of doctors, lawyers, engineers, teachers, etc.) are often the leading edge of civil society owing to the high level of education, political awareness, and financial resources of their members. In Egypt, Muslim Brothers are elected majorities on the boards of most of these associations.

Among the Arab Gulf States, Kuwait’s civil society deserves mention, with its fairly free press, professional associations and cultural clubs. In particular, the diwaniyyah function as a gathering place in citizens’ homes where men socialize while discussing a variety of topics, political and otherwise. Some women have started their own diwaniyyah, and it was the diwaniyyah that gave birth to the country’s pro-democracy movement. While Kuwait’s constitution provides the framework for its civil society, the State has never recognized independent voluntary organizations. Turkey, with its Kemalist/laicist state, has a yet more energetic civil society, much of it Islamic. Still, its Islamist members “possess contradictory motivations and goals and sometimes radically different interpretations of fundamental religious principles and political platforms” (Jenny B. White). When the Kemalist regime crushed the Left in the early 1980s, Muslim activists filled the void: charitable, welfarist, and educational projects persist against a backdrop of agitation for economic and social justice. The electoral success of the Islamic Justice and Development Party (‘AK’) provides evidence of the mobilizational and organizational skills of Muslims in civil society, apart from continuity with the legacy of the Welfare and Virtue Parties.

Finally, note should be made of the attraction of militant Islamist groups like Hezbollah and Hamas. These groups draw young recruits and galvanize popular support for several reasons, not the least of which is their “provision of substantial social services and charitable activities, from education to housing and financial support of the members of families killed, wounded, or detained by authorities" (John L. Esposito).

Further Reading:

Asef Bayat, Making Islam Democratic: Social Movements and the Post-Islamist Turn (Stanford, CA: Stanford University Press, 2007); Robert A. Dahl, Ian Shapiro and José Antonio Chiebub, eds., The Democracy Sourcebook (Cambridge, MA: MIT Press, 2003); Khaled Abou El Fadl, "Islam and the Challenge of Democracy," Boston Review (April/May 2003); John L. Esposito and Franςois Burgat, eds., Modernizing Islam: Religion in the Public Sphere in Europe and the Middle East (New Brunswick, N.J.: Rutgers University Press, 2003); John L. Esposito and John O.Voll, Islam and Democracy (New York: Oxford University Press, 1996); Noah Feldman, After Jihad: America and the Struggle for Islamic Democracy (New York: Farrar, Straus and Giroux, 2003); John Keane, Civil Society: Old Images, New Visions (Stanford, Calif.: Stanford University Press, 1998); Augustus Richard Norton, ed., Civil Society in the Middle East, 2 Vols. (Leiden: E.J. Brill, 1995-96); James Piscatori, “Islam, Islamists, and the Electoral Principle in the Middle East” (Leiden, The Netherlands: International Institute for the Study of Islam in the Modern World [ISIM], 2000); Jenny B. White, Islamist Mobilization in Turkey: A Study in Vernacular Politics (Seattle, Wash.: University of Washington Press, 2002); and Carrie Rosefsky Wickham, Mobilizing Islam: Religious Activism and Political Change in Egypt (New York: Columbia University Press, 2002).

A slightly different version of the above appeared in Juan E. Campo, ed., Encyclopedia of Islam. New York: Checkmark Books, 2009.

Iran: Toward an Understanding of Contemporary Events

Inspired by Dean Jim Chen's post, Tehran, June 15, 2009, I thought I would provide a list of books that enable one to better understand contemporary events, if only by placing them in socio-political context and historical perspective.

Portraits of armed Baluchis, Turks and Persians involved in the constitutional revolution in Persia, c.1905-09, the declaration of the deposition of Shah Muhammad Ali, and guns on the streets of Mashhad. [shelfmark:Photo 851/4(91)] © The British Library Board.

• Abdo, Geneive and Jonathan Lyons. Answering Only to God: Faith and Freedom in Twenty-First Century Iran. New York: Henry Holt & Co., 2003.
• Abrahamian, Ervand. Iran Between Two Revolutions. Princeton, NJ: Princeton University Press, 1982.
• Abrahamian, Ervand. The Iranian Mojahedin. New Haven, CT: Yale University Press, 1989.
• Abrahamian, Ervand. Khomeinism: Essays on the Islamic Republic. Berkeley, CA: University of California Press, 1993.
• Abrahamian, Ervand. Tortured Confessions: Prisons and Public Recantations in Modern Iran. Berkeley, CA: University of California Press, 1999.
• Adelkhah, Fariba. Being Modern in Iran. New York: Columbia University Press, 2000.
• Afary, Janet. The Iranian Constitutional Revolution, 1906-1911. New York: Columbia University Press, 1996.
• Afkhami, Mahnaz and Erika Friedl, eds. In the Eye of the Storm: Women in Post-Revolutionary Iran. Syracuse, NY: Syracuse University Press, 1994.
• Afshari, Reza. Human Rights in Iran: The Abuse of Cultural Relativism. Philadelphia, PA: University of Pennsylvania Press, 2001.
• Akhavi, Shahrough. Religion and Politics in Contemporary Iran: Clergy-State Relations in the Pahlavi Period. Albany, NY: State University of New York Press, 1980.
• Algar, Hamid. The Islamic Revolution in Iran. London: Open Press, 1980.
• Algar, Hamid. Religion and State in Iran 1785-1906: The Role of the Ulama in the Qajar Period. Berkeley, CA: University of California Press, 1969.
• Alizadeh, Parvin, ed. The Economy of Iran: The Dilemma of an Islamic State. London: I.B. Tauris, 2000.
• Ansari, Ali M. Iran, Islam, and Democracy: The Politics of Managing Change. London: Chatham House, 2nd ed., 2006.
• Ansari, Ali M. Modern Iran Since 1921: The Pahlavis and After. London: Longman, 2003.
• Arjomand, Said Amir. The Turban for the Crown: The Islamic Revolution in Iran. Oxford, UK: Oxford University Press, 1988.
• Azimi, Fakhreddin. Iran: the Crisis of Democracy. London: I.B. Tauris, 1989.
• Bakhash, Shaul. The Reign of the Ayatollahs: Iran and the Islamic Revolution. New York: Basic Books, 1990.
• Baktiari, Bahman. Parliamentary Politics in Revolutionary Iran: The Institutionalization of Factional Politics. Gainseville, FL: University Press of Florida, 1996.
• Bayat, Asef. Street Politics: Poor People’s Movements in Iran. New York: Columbia University Press, 1997.
• Bayat, Asef. Workers and Revolution in Iran. London: Zed Books, 1987.
• Bayat, Mangol. Iran’s First Revolution: Shi‘ism and the Constitutional Revolution of 1905-1909. New York: Oxford University Press, 1991.
• Bill, James A. The Eagle and the Lion: The Tragedy of American-Iranian Relations. New Haven, CT: Yale University Press, 1988.
• Bonine, Michael E. and Nikki R. Keddie, eds. Modern Iran: The Dialectics of Continuity and Change. Albany, NY: State University of New York Press, 1981.
• Browne, Edward G. The Persian Revolution, 1905-1909. Cambridge, UK: Cambridge University Press, 1910.
• Chehabi, H.E. Iranian Politics and Religious Modernism: The Liberation Movement of Iran under the Shah and Khomeini. Ithaca, NY: Cornell University Press, 1990.
• Ehteshami, Anoushiravan. After Khomeini: The Iranian Second Republic. New York: Routledge, 1995.
• Esfandiari, Haleh. Reconstructed Lives: Women & Iran’s Islamic Revolution. Baltimore, MD: Johns Hopkins University Press, 1997.
• Farsoun, Samih K. Iran: Political Culture in the Islamic Republic. London: Routledge, 1992.
• Fischer, Michael M.J. Iran: from Religious Dispute to Revolution. Cambridge, MA: Harvard University Press, 1980.
• Foran, John. Fragile Resistance: Social Transformation in Iran from 1500 to the Revolution. Boulder, CO: Westview Press, 1993.
• Foran, John, ed. A Century of Revolution: Social Movements in Iran. Minneapolis, MN: University of Minnesota Press, 1994.
• Ganji, Akbar. The Road to Democracy in Iran. Cambridge, MA: MIT Press, 2008.
• Gasiorowski, Mark. U.S. Foreign Policy and the Shah: Building a Client State in Iran. Ithaca, NY: Cornell University Press, 1991.
• Ghani, Cyrus. Iran and the Rise of Reza Shah: From Qajar Collapse to Pahlavi Power. London: I.B. Tauris, 2000.
• Ghani, Cyrus. Iran and the West: A Critical Bibliography. London: Kegan Paul Int’l., 1987.
• Gheissari, Ali. Iranian Intellectuals in the Twentieth Century. Austin, TX: University of Texas Press, 1998.
• Gheissari, Ali, ed. Contemporary Iran: Economy, Society, Politics. New York: Oxford University Press, 2009.
• Graham, Robert. Iran: the Illusion of Power. London: Croom Helm, revised ed., 1979.
• Hairi, Abdu’l-Hadi. Shī‘ism and Constitutionalism in Iran. Leiden: E.J. Brill, 1977.
• Hooglund, Eric, ed. Twenty Years of Islamic Revolution: Political and Social Transition in Iran since 1979. Syracuse, NY: Syracuse University Press, 2002.
• Irfani, Shuroosh. Revolutionary Islam in Iran: Popular Liberation or Religious Dictatorship? London: Zed Books, 1983.
• Kamrava, Mehran. Iran’s Intellectual Revolution. Cambridge, UK: Cambridge University Press, 2008.
• Katouzian, Homa. Mussadiq and the Struggle for Power in Iran. London: I.B. Tauris, 1991.
• Katouzian, Homa. The Political Economy of Modern Iran. London: Macmillan, 1981.
• Kazemi, Farhad. Poverty and Revolution in Iran: The Migrant Poor, Urban Marginality, and Politics. Washington Square, NY: New York University Press, 1981.
• Keddie, Nikki R. Iran and the Muslim World: Resistance and Revolution. Washington Square, NY: New York University Press, 1995.
• Keddie, Nikki R. Iran: Religion, Politics and Society. London: Frank Cass, 1980.
• Keddie, Nikki R. Religion and Rebellion in Iran: The Tobacco Protest of 1891-1892. London: Frank Cass, 1966.
• Keddie, Nikki R. Roots of Revolution: An Interpretative History of Modern Iran. New Haven, CT: Yale University Press, 1981.
• Keddie, Nikki R. Modern Iran: Roots and Results of Revolution. New Haven, CT: Yale University Press, 2006 ed.
• Keddie, Nikki R., ed. Religion and Politics in Iran: Shi‘ism from Quietism to Revolution. New Haven, CT: Yale University Press, 1983.
• Menashri, David. Post-Revolutionary Politics in Iran: Religion, Society and Power. London: Frank Cass & Co., 2001.
• Milani, Mohsen M. The Making of Iran’s Islamic Revolution: From Monarchy to Islamic Republic. Boulder, CO: Westview Press, revised ed., 1994.
• Mir-Hosseini, Ziba. Islam and Gender: The Religious Debate in Contemporary Iran. Princeton, NJ: Princeton University Press, 1999.
• Mir-Hosseini, Ziba and Richard Tapper. Islam and Democracy in Iran: Eshkevari and the Quest for Reform. London: I.B. Tauris, 2006.
• Moaddel, Mansoor. Class, Politics, and Ideology in the Iranian Revolution. New York: Columbia University Press, 1992.
• Moghissi, Haideh. Populism and Feminism in Iran: Women’s Struggle in a Male-Defined Revolutionary Movement. New York: St. Martin’s Press, 1996.
• Moslem, Mehdi. Factional Politics in Post-Khomeini Iran. Syracuse, NY: Syracuse University Press, 2002.
• Mottahedeh, Roy. The Mantle of the Prophet: Religion and Politics in Iran. Oxford, UK: Oneworld, 2000.
• Nabavi, Negin. Intellectuals and the State in Iran: Politics, Discourse and the Dilemma of Authenticity. Gainesville, FL: University Press of Florida, 2003.
• Nabavi, Negin, ed. Intellectual Trends in 20th Century Iran. Gainesville, FL: University Press of Florida, 2003.
• Paidar, Parvin. Women and the Political Process in Twentieth-Century Iran. Cambridge, UK: Cambridge University Press, 1995.
• Postel, Danny. Reading Legitimation Crisis in Tehran: Iran and the Future of Liberalism. Chicago, IL: Prickly Paradigm Press, 2006.
• Rajaee, Farhang, ed. The Iran-Iraq War: The Politics of Aggression. Gainesville, FL: University Press of Florida, 1993.
• Rejali, Darius M. Torture and Modernity: Self, Society and State in Modern Iran. Boulder, CO: Westview Press, 1993.
• Ringer, Monica M. Education, Religion, and the Discourse of Cultural Reform in Qajar Iran. Costa Mesa, CA: Mazda Publ., 2000.
• Sanasarian, Eliz. The Women’s Rights Movement in Iran: Mutiny, Appeasement, and Repression from 1900 to Khomeini. New York: Praeger, 1982.
• Schirazi, Asghar (John O’Kane, trans.). The Constitution of Iran: Politics and the State in the Islamic Republic. London: I.B. Tauris, 1997.
• Takeyh, Ray. Guardians of the Revolution: Iran and the World in the Age of Ayatollahs. New York: Oxford University Press, 2009.
• Tavakoli-Targhi, Mohamad. Refashioning Iran: Orientalism, Occidentalism and Historiography. New York: Palgrave Macmillan, 2001.
• Vahdat, Farzin. God and Juggernaut: Iran’s Intellectual Encounter with Modernity. Syracuse, NY: Syracuse University Press, 2002.
• van den Bos, Matthijs. Mystic Regimes: Sufism and the State in Iran, from the late Qajar Era to the Islamic Republic. Leiden: E.J. Brill, 2002.
• Wright, Robin. The Last Great Revolution: Turmoil and Transformation in Iran. New York: Vintage Books, 2001.

Serious intellectual writings and discussions involving secularists, religious liberals, and reformist clerics have grown since the early 1990s, and even when their outlets in the periodical press were restricted, books and treatises could still be published. [....] Thinkers who have written since 1990 are generally more sophisticated and more knowledgeable about a variety of Western and Islamic sources than were their intellectual predecessors. These predecessors, like their contemporaries in many parts of the world, if they were politically oriented, tended to have ideological views that emphasized one factor as central to solving Iran's problems--whether class, economics, and socialism for the Marxists, science, nationalism, or racism for many modernizers, or varying interpretations of Islam for both Islamic modernists and Islamic conservatives. (Similar simplifications were also characteristic of many intellectuals elsewhere.) Nearly all tended to stress foreign imperialist evils far more than internal reasons for Iran's problems. Reformists who stressed Islam usually took the path known as Islamic modernism--basically the claim that all the positive values they had seen in the West--science, representative government, a better position for women, and so forth--were found in Islam if it were rightly understood. The Mojahedin-e Khalq, Shariati, and Khomeini had different views of Islam, but all were ideological and convinced that their path would solve the problems of the world. The popularity in the Pahlavi period of ideological views, especially Marxism-Leninism and nationalism, helped encourage competing political-ideological constructions of Islam, the most influential being those of Shariati and Khomeini.

Thinkers of the 1990s were more complex and sophisticated; they broke with ideologies that implied that ideological correctness could bring about an ideal society. They also considered Western ideas to be complex and varied, and not a solution to all problems (as had some earlier Iranian nationalists), not simple extensions of ideas already present in Islam or Iran, and not, alternatively, simply dangerous aspects of imperialism. Several of the new thinkers are well acquainted with both Western and Islamic thought, and, unlike many of their ideological predecessors, do not think huge social advances can be attained if people act in favor of a particular ideology. There has been a new stress on freedom of thought, including of religion, which earlier thinkers had tended to subordinate to anti-imperialism or other values, and also on the importance of democracy, greater gender equality, and new and fair laws. There have also been a variety of strong criticisms of clerical rule. Nikki Keddie, Modern Iran: Roots and Results of Revolution (New Haven, CT: Yale University Press, 2006 ed): 304-305.

Terrorism: A Selected Bibliography

This bibliographic installment in the Directed Reading series treats terrorism. The material below will have to suffice as a cursory introduction of sorts to the topic, albeit one colored by my particular moral, legal and political perspectives. We would do well to recall that "Bismark 'terrorized' Prussia by using the army as a means of social control; Nazi Germany imposed a reign of terror across Europe; German and allied air forces resorted to 'terror bombing' in the Second World War; and Stalin ruled Russia by terror." Aerial bombardment ('carpet bombing') of North Vietnam and Cambodia by the United States during the Vietnam War is likewise aptly termed terror bombing. Thus, although the focus in the media, the academy, and the commanding heights of political power of late has been on the terrorist acts of non-State actors, as Noam Chomsky has not tired of telling us, terrorism is not only a weapon of the weak and desperate but is also prominent in the arsenal of those acting on behalf of the most powerful nation-state on the planet...and to far more devastating effect.

Few words are plagued by so much indeterminacy, subjectivity, and political disagreement as 'terror,' 'terrorize,' 'terrorism,' and 'terrorist.' The ordinary linguistic meanings of these variant terms are instantly evocative and highly emotive, referring at a literal level to intense fear, fright or dread. By itself, a literal meaning is not particularly instructive in distilling a legal concept of terrorism, since 'every form of violence is potentially terror-inspiring to its victim,' from mugging to warfare.

...[T]he peculiar semantic power of the term [terrorist], beyond its literal signification, is its capacity to stigmatize, delegitimize, denigrate, and dehumanize those at whom it is directed, including legitimate political opponents.

There are no clean lines between terrrorism and other forms of political violence, and the debate about defining terrorism is also a debate about the classification of political violence in all its myriad forms: riot, revolt, rebellion, war, conflict, uprising, revolution, subversion, intervention, guerilla warfare, and so on.

Invidious moralization tends to accompany reference to terrorism, casting it as a titanic, Manichean, existential struggle of polarities: humanity and inhumanity; civilization and barbarism; freedom and fear; modernity and pre-modernity; liberal democracy and apocalyptic, eschatological, phantasmagorical nihilism; the rational and the pathological; law and outlaw; friend and enemy; the West and Others; Christianity and Islam; light and dark; good and evil.

If terrorism is presented as an absolute threat, then counter-terrorism measures must also be unlimited. Labeling opponents as terrorists delegitimizes, discredits, dehumanizes and demonizes them, casting them as fanatics who cannot be reasoned with.

[I]f international law is not to become complicit in oppression by criminalizing legitimate political resistance, justifications for terrorist violence must be taken seriously by the law. [....] While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law's legitimacy, [we need to take seriously the possibility] that some acts of terrorism could, in exceptional cases, be regarded as 'illegal but justifiable' (or at least excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a 'collective defence of human rights.'

[T]hree iconic figures — Yasser Arafat (PLO), Gerry Adams (IRA), and Nelson Mandela (ANC) — were at some point arguably responsible for terrorism by their organizations. While their degree of responsibility differs (particularly in organizations with ostensibly separate political and military wings), it is startling how persons once regarded as terrorists were later embraced as legitimate representatives of political movements, entitled to a share of State power, or even to Nobel Prizes (Arafat in 1994, Mandela in 1993). All were absolved of criminal responsibility for terrorism, as a precondition of involvement in political settlements.
— Ben Saul, Defining Terrorism in International Law. New York: Oxford University Press, 2006.

[We might view the terrorist] as a representative of this or that political, or politico-religious, grievance or program, with a range of tactics at his or her disposal, just like the rest of us, and, just like the rest of us, resorting from time to time to morally dubious or outrageous tactics.

Terrorism is not a tactic restricted to revolutionaries and other non-governmental groups. Doubtless many people would be surprised at the idea that governments and authorized governmental agencies do or can use terrorist methods for their political purposes, but such surprise is quite often the product of naivete or prejudice.
— C.A.J. Coady, Morality and Political Violence. Cambridge, UK: Cambridge University Press, 2008.

Terrorism is not an organization or a movement or even an 'enemy' that one can declare war on; terrorism is simply the tactic of indiscriminately attacking enemy targets--especially civilians--in order to sow fear, undermine morale, and provoke counterproductive reactions from one's adversary. It is a tactic that many different groups sometimes employ, usually when they are much weaker than their adversaries and have no good option for fighting against superior military forces. Zionists [e.g., especially the members of Irgun (or 'Etzel') and Lehi (or the Stern Gang)] used terrorism when they were trying to drive the British out of Palestine and establish their own State...and the United States has backed a number of 'terrorist' organizations in the past (including the Nicaraguan contras and the UNITA guerillas in Angola). American presidents have also welcomed a number of former terrorists to the White House (including PLO chairman Yasser Arafat and Israeli Prime Ministers Menachem Begin and Yitzhak Shamir, who played key roles in the main Zionist terrorist organizations) which merely underscores the fact that terrorism is a tactic and not a unified movement.
— John J. Mearsheimer and Stephen M. Walt, The Israel Lobby and U.S. Foreign Policy. New York: Farrar, Straus and Giroux, 2007.

The reduction of the Palestinian Authority to a mere terrorist entity with no political character is a denial of reality. But reducing Hamas to this concept is equally so, whatever its methods of action and reactionary nature. Hamas is primarily a nationalist movement that inserts the national claim into a religious logic
— Sylvain Cypel, Walled: Israeli Society at an Impasse. New York: Overlook Press, 2006.

...[T]o be justified, terrorism should be subject to certain constraints, the most important of which is that it should be selective whenever possible and should initially at least be directed only against the actual perpetrators of the injustice against those who are now considering the use of violence as a response.

...[T]errorism in our time has probably been more concerned with the right to national self-determination than with any other single cause.
— Burleigh Taylor Wilkins, Terrorism and Collective Responsibility. New York: Routledge, 1992.

[There are a host of reasons that] suggest...the recent political philosophy of the affluent, liberal west may not afford the most useful point of entry for an investigation into problems of terror and terrorism.

All too often terrorism is the tactical choice simply because the perceived advantages it offers are so great. It costs relatively little in money and manpower. It has immediate effects and generates extensive and highly sensationalized publicity for one's cause. It affords an emotionally satisfying outlet for feelings of rage and the desire for vengeance. It induces an acute sense of vulnerability in all those who identify with its immediate victims. And insofar as those victims are chosen randomly from among some very large group, the class of people who identify with them is maximized, so that an extraordinary number of people are given a vivid sense of the potential costs of resisting one's demands. Figuratively and often literally, terrorism offers the biggest bang for one's buck.
— Samuel Scheffler, "Is Terrorism Morally Distinctive?" The Journal of Political Philosophy, Vol. 14, No. 1 (2006): 1-17.

When it comes to terrorism, a phenomenon that almost always stirs fear and insecurity disproportionate to the actual danger, the temptation for governments to bend the rules and the truth becomes irresistible.

...[A]part from being a massive propaganda gift to militant Islamist extremism, the war in Iraq has led to terrorism on an even bigger scale.

One of bin Laden's intentions back in 2001 [was to] portray the West as scared, emotionally vulnerable, overreactive, decadent and hypocritical about liberal values. The West has done a very good job of proving him right. The invasion of Iraq, the images of torture and the widely documented abuses of prisoners at Guantanamo and other U.S. detention facilities has left the U.S. reviled not only in the Arab world but throughout the West, undercutting the moral authority which is vital for any liberal democracy in dealing effectively with persistent terrorist violence.

There never was a 'terrorist threat' to western civilization or democracy, only to western lives and property. Such a threat becomes systemic only when democracy loses its confidence and when its leaders exploit public fear for political ends.
— George Kassimeris in the volume he edited, Playing Politics with Terrorism. New York: Columbia University Press, 2008.

There are a number of clear political advantages to be gained from the creation of social anxiety and moral panics. In the first place, fear is a disciplining agent and can be effectively deployed to de-legitimize dissent, mute criticism, and constrain internal opponents. In an atmosphere of national peril, the appeal for political unity takes on greater moral force and voicing disagreement can be characterised as an act of disloyalty. Fear can lead ordinary citizens to act as the primary agents of censure themselves, both in terms of self-censorship (choosing to withhold their own doubts and disagreements in public discourse) and the censorship of others (expressing disapproval when confronted with dissenting or 'disloyal' opinions in others). This is because fear is corrosive of both political expression and moral courage. Either way, its primary function is to ease the pressure of accountability for political elites. An instrument of elite rule, political fear is in effect a political project aimed at reifying existing structures of power.

Within the pragmatic logic of counterterrorism, it seems obvious that the politics of fear can too easily become self-fulfilling prophesy. Exaggerating the terrorist threat and maintaining social fear actually emboldens and empowers terrorists; it provides them with incontrovertible evidence of their own ability to gain unlimited publicity and influence a terrified society through the threat of violence. Given that terrorism is essentially a form of political communication and therefore relies on the widest possible publicity, the politics of fear plays directly into the hands of militants. From this perspective, it is strategically counter-productive.

It can easily be demonstrated that state terrorism--the use or threat of state-sponsored violence to instil fear for political purposes--remains a far greater threat to individual and social security than the threat of dissident terrorism. Over the last few decades, states, including several liberal democracies, have tortured and murdered hundreds of thousands of political opponents and caused massive social destruction to communities in places like Vietnam, Cambodia, South Africa, El Salvador, Nicaragua, Cuba, Chile, Spain, Northern Ireland, Rwanda, Serbia, and Turkey--to name just a few. And government forces continue to employ violent repression and state terror in places like Chechniya, Palestine, Kashmir, Afghanistan, Iraq, Algeria, Saudi Arabia, Egypt, Uzbekistan, Zimbabwe, and Myanmar, among many others. State terror has always been a far greater threat to security than non-state terror, and yet, state terror is conspicuous by its absence from the public narrative of the terrorist threat--except of course, when it is cynically deployed to justify wars of 'regime change.'
— Richard Jackson in George Kassimeris, ed., Playing Politics with Terrorism. New York: Columbia University Press, 2008.

Today, U.S. Special Operation Forces--who do not wear uniforms, operate behind enemy lines, do not openly display their weapons, and generally fail to conform to the rules of war--...could be considered terrorists in that they are neither soldiers nor civilians.

...[T]errorists are fighters who are even more in need of the traditional protections of the rules of war, for they inspire emotional reactions that are themselves often inhumane.

...[S]ome terrorists engage in indiscriminate violence and others do not.

[Setting aside for the moment the larger obligation of humane treatment], from the standpoint of retributive justice, terrorists--and all others, for that matter--are owed procedural due process considerations that are involved in establishing what they have done.

If terrorists are combatants, then they are owed the type of mutual respect that is paid to all combatants according to the Just War tradition. If we are to use the law/crime model, then terrorists are owed the full due process considerations that apply to any criminal suspect.
— Larry May, War Crimes and Just War. Cambridge, UK: Cambridge University Press, 2007.

Law Professors as Bridges

One of the themes developing in the legal blogoshpere following the nomination of Judge Sotomayor to the Supreme Court concerns the role of the legal professoriate in elevating the debate. (For example.) That prompts me to toss out a link to a recent post by Dean Joseph Kearney on the Marquette Faculty Blog concerning that role more generally. In it, Dean Kearney discusses recent comments by Marquette alum and Brooklyn Law Professor Aaron Twerski and Marquette faculty member (and Prawfsblawg alum) Michael O’Hear regarding the relationship between law faculties, larger university communities, and the bench and bar. O’Hear made his remarks in connection with receiving the Judge Robert Warren Public Service Award from the Eastern District of Wisconsin Bar Association, and explores the many ways in which a law professor can serve as a bridge between many different communities. Twerski likewise spoke in connection with receiving an award – the Robert C. McKay Law Professor Award from the Torts and Insurance Section of the ABA – and advances the view that legal scholars should not fall into the trap of speaking only to one another. I have no grand thoughts of my own to add. Only the suggestion that these brief commentaries are worth a read and that the points they raise are, as always, things worth giving thought as we proceed on our scholarly journeys.

Empathy & Law

We now have a fair number of posts around the legal blogosphere speaking to the question of empathy and judging, prompted by President Obama's remark that empathy is critical to judging and thus a capacity desirable in a candidate to replace Justice Souter on the Supreme Court (as we just learned, the President has nominated Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit). Empathy has at least a family resemblance to such emotions as pity, mercy, compassion and sympathy. It's important to entertain the possibility that empathy-based altruism might conflict with the desire to uphold a moral principle of justice inasmuch as the former can be partial or myopic, as when Western Buddhists identify with the plight of Tibetans inside and outside of Tibet but take no notice of the poverty and misery of many individuals in, say, Haiti, or when an object of our special emotional concern effectively crowds out moral attention toward those in greatest need.

Below I've selected the posts I've found interesting for one reason or another (a couple of which I commented on). I've also provided a handful of articles and books that provide a nice introduction to the concept of empathy.

At PrawfsBlawg, Paul Horwitz asks, "Is Empathy Lawless?"

Our own Robert Justin Lipkin poses a broader question: "What's Empathy Got To Do With It?" and then replies to the right side of Mirabeau's "geography of the Assembly": "Is 'Empathy' a Code Word for Judicial Liberalism?"

Daniel Solove of Concurring Opinions: "What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice"

Michael Dorf on "Empathy and Justice"

My favorite legal ethicist, Monroe Freedman, "On Empathy in Judging"

Douglas Berman of Sentencing Law and Policy fame: "Prosecutorial power, victims rights, sentencing judgments and judicial empathy"

Last but not least, Susan Bandes at Balkinization illustrates empathy by way of the oral argument in Safford Unified School District v. Redding: "Why is Empathy Controversial? Or Liberal?"

Selected Reading:

• Barnes, Allison and Paul Thagard, "Empathy and Analogy," Dialogue: Canadian Philosophical Review, 36 (1997): 705-720. [Although I don't share their philosophy of mind assumptions, there's much of interest in this article.]
• Goldie, Peter. The Emotions: A Philosophical Exploration. New York: Oxford University Press, 2000. See "empathy" in the index.
• Nussbaum, Martha C. Upheavals of Thought: The Intelligence of Emotions. Cambridge, UK: Cambridge University Press, 2001. Again, see the index, but especially pp. 327-335.
• Slote, Michael. The Ethics of Care and Empathy. New York: Routledge, 2007.
• Solomon, Robert C. True to Our Feelings: What Our Emotions Are Really Telling Us. New York: Oxford University Press, 2007: 66-71.
• Stueber, Karsten R. Rediscovering Empathy: Agency, Folk Psychology, and the Human Sciences. Cambridge, MA: MIT Press, 2006.
• Stueber, Karsten, "Empathy," The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/empathy/

Update: Once again, Michael Hiltzik of the Los Angeles Times has a column on point, this time explaining how the august Oliver Wendell Holmes demonstrated a disturbing lack of empathy in Buck v. Bell, 274 U.S. 200 (1927) :

[....] Holmes, perhaps the most revered of all Supreme Court justices, was always proud of his opinion in Buck vs. Bell, which upheld a Virginia law allowing the forced sterilization of "mental defectives." Yet the terse ruling proclaims, in each of its four chilling paragraphs, the narrow elitism of his personal life experience. And its consequence was tens of thousands of ruined lives over the next half-century. [....]

Is the law a set of immutable principles brought to earth on, say, the wings of heavenly messengers to be decoded robotically by human agents distinguished only by their power of intellect? Or is it a living institution, evolving with society, incorporating an ever broader and deeper definition of American values as the definition of "American" itself becomes broader and deeper? In other words, did Justice Holmes' opinion in Buck vs. Bell reflect basic legal principles or establishment culture?

The case of Carrie Buck arose at a time when the pseudo-science of eugenics had achieved broad currency. Eugenics held that intelligence was an inherited trait, and that the "feeble-minded" or "socially inadequate" should therefore be forcibly sterilized to preserve the human race. As the historian William E. Leuchtenburg observed in a 1989 essay, the target group encompassed the "wayward," the tubercular, the "blind, deaf and deformed," orphans, paupers and the homeless. Eugenicists seemed wholly untroubled by "the transparent class bias, not to mention the heartlessness toward the handicapped, in this classification scheme," he wrote.

When opponents of Virginia's sterilization law brought her case to the Supreme Court, Buck was 18 and a resident of the State Colony for Epileptics and Feeble Minded, where Superintendent J.H. Bell held the authority to order the sterilization of his wards---"under careful safeguard" of their due process rights, Holmes would write.

Holmes accepted at face value the state's contention that Buck was "a feeble-minded white woman, . . . the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child." Upholding society's interest in avoiding the "transmission of insanity, imbecility, etc.," he produced one of the most infamous sentences in the annals of the court. "Three generations of imbeciles," he wrote, "are enough."

("Imbecile" was then a technical classification in eugenics -- a step above "idiot" and below "moron.")

Might the outcome of Buck vs. Bell have been different were the court not monolithic? Leuchtenburg thinks so. "It's hard to believe that one or two women justices might not have made a difference," he told me from his home near the University of North Carolina, where he is a professor emeritus. "They might have made the other justices confront what was at issue." [....]

Certainly Holmes' background showed. His upbringing as the son of an eminent Boston physician, his Harvard education and experience as a commercial lawyer arguably blinded him to the humanity of those whose lives fell outside the scope of his experience.

What he missed in his eagerness to keep Carrie Buck from procreating was the shallowness of the state's judgment of her. There was no evidence of her or her mother's "feeble-mindedness" -- just of an irregular lifestyle that elicited "the contempt of the well-off and well-bred," as one of her champions wrote.

A lawyer who met her later found her reading a newspaper and helping a friend with a crossword puzzle. As for her child, who was seven months old when a social worker condemned her for having a "look . . . that is not quite normal," she maintained adequate grades in school but died at age 8.

We can't condemn Holmes alone for the travesty of Buck vs. Bell. It was an 8-1 opinion, with two of the court's outstanding liberals, Louis D. Brandeis and Harlan F. Stone, acquiescing in silence. Conservative Justice Pierce Butler issued the lone unwritten dissent.

We can, however, take it as a lesson in how time and diversity can transform even an institution as precedent-driven as the Supreme Court. It's impossible to say how Sonia Sotomayor's personal history, much less her "empathy," will play out on the court, assuming she's confirmed. At Berkeley, she didn't predict that a Latina justice would steer the court in any particular direction. And no matter where they stand on the political spectrum, justices have a way of confounding the expectations of their presidential sponsors.

But to deny that the character and experience of judges helps to make law is foolish. Virginia sterilized more than 7,500 men and women before ceasing the practice in 1979 -- second only to California, where 20,000 operations were performed. Nationwide, the toll was 60,000. How many would have been saved, one wonders, had the court showed a little "empathy"?

Post-Academic Science

In a comment to a post aptly titled "Mercketing" by Frank Pasquale at Concurring Opinions, I attempted to place his discussion of the "the latest twist in the sorry saga of modern drug marketing" in the bigger picture of "post-academic science" as analyzed so thoroughly and convincingly by John Ziman in Real Science: What It Is, and What It Means (2000). What follows is a summary characterization of same, and I thought it of sufficient interest to cross-post here:

What has happened in this instance is symptomatic of the myriad problems that are part and parcel of “post-academic science” in general for, in John Ziman’s words, “In less than a generation we have witnessed a radical, irreversible, worldwide transformation in the way that science is organized, managed and performed.” For a detailed exposition of precisely what constitutes post-academic science, one should consult Ziman’s Real Science: What It Is, and What It Means (2000), but permit me here to highlight a few features he documents (largely those that make for discontinuity with its predecessor, namely, academic science, thus I’m ignoring, unlike Ziman, those elements which make for continuity):

…[P]ost-academic science is under pressure to give more obvious value for money. Many features of the new mode of knowledge production have arisen ‘in the context of application’–that is, in the course of research on technological, environmental, medical or societal problems. More generally, science is being pressed into the service of the nation as the driving force in a national R&D system, a wealth-creating techno-scientific motor for the whole economy.

…[A] norm of utility is being injected into every joint of the research culture. Discoveries are evaluated commercially before they have been validated scientifically. [....] Scientists themselves are seldom in a good position to assess the utility of their work, so expert peer review is enlarged into ‘merit review’ by non-specialist ‘users.’

…[A]s researchers become more dependent on project grants, the ‘Matthew Effect’ is enhanced. Competition for real money takes precedence over competition for scientific credibility as the driving force of science. With so many researchers relying completely on research grants or contracts for their personal livelihood, winning these becomes an end in itself. Research groups are transformed into small business enterprises. The metaphorical forum of scientific opinion is turned into an actual market in research services.

…[T]he social organization of academic science can be described in terms of…Mertonian norms [i.e., Communalism, Universalism, Disinterestedness, Originality, and Scepticism, or CUDOS]. This description is, of course, highly idealized, but not completely unrealistic. Industrial science, by contrast, contravenes these norms at almost every point. [....] Very schematically, industrial science is Proprietary, Local, Authoritarian, Commissioned, and Expert. It produces proprietary knowledge that is not necessarily made public. It is focused on local technical problems rather than on general understanding. Industrial researchers act under managerial authority rather than as individuals. Their research is commissioned to achieve practical goals, rather than undertaken in the pursuit of knowledge. They are employed as expert problem-solvers, rather than for their personal creativity. It is no accident, moreover, that these attributes spell out ‘PLACE.’ That, rather than ‘CUDOS,’ is what you get for doing good industrial science. As Ziman elsewhere notes, the development of much closer relationships between academia and industry is one of the major features of the transition from academic to post-academic science.

Post-academic science is organized on market principles. One of the consequences of this is that the post-academic research project is subordinate to the sphere of influence of bodies with the corresponding material interests. Thus, for example, basic research findings in molecular genetics have potential applications in plant breeding. Agrochemical firms and farmers are therefore deemed to have a legitimate right to influence the course of this research, from the formulation of projects to the interpretation of outcomes.

In general…post-academic natural scientists can usually be trusted to tell ‘nothing but the truth,’ on matters about which they are knowledgeable. But unlike academic scientists, they are not bound to tell ‘the whole truth.’ They are often prevented, in the interests of their employers, clients or patrons, from revealing discoveries or expressing doubts that would put a very different complexion on their testimony. The meaning of what is said is secretly undermined by what is not said. This proprietorial attitude to the results of research has become so familiar that we have forgotten how damaging it is to the credibility of scientists and their institutions. This is one result of the fact that ‘the context of application’ is largely defined by the material interests of bodies outside science.

For better and worse, the problems that activate post-academic science are often deeply rooted in history, and are typically ‘owned’ by well-established institutions, such as pharmaceutical companies, arms procurement agencies, associations of engineering and medical practitioners, environmental protection commissions, economic advisory councils, and so on. This elaborate social structure is associated with an equally elaborate epistemic structure, where the ‘problem areas’ are differentiated much more arbitrarily, and are often narrow and specialized [despite the well-known fact that many of the issues tackled by science and society demand a 'transdisciplinary' approach], than they are in academic science.

In short, we have increasing subordination to corporate and political interests that do not put a high value on the production of knowledge for the benefit of society at large.

Addendum: I noticed after I posted this that today happens to be Ziman's birthday!

Update: A nice illustration of one of the differences between academic and post-academic science as the distinction is drawn by Ziman is found in this column by Michael Hiltzik from the Business section of the Los Angeles Times: "Investor-funded research could bring march of science to a standstill." From the article:

...[I]n the biotech world, where millions or even billions of dollars in profits beckon to those who can assert ownership of important discoveries, good intentions and purely scientific goals don't matter like they used to. Access by basic researchers to the essential building blocks of biomedical advances has been shrinking for years, thanks to a land rush by entrepreneurs wielding patent portfolios.

As the conflict between CHOC and StemCells suggests, the penetration of private investment concerns into what used to be largely academic pastures threatens to hobble, rather than hasten, the march of science. The harvest may be secrecy, delay and the directing of research only toward developments that promise quick financial returns.

In the stem cell field, "the pendulum may have swung too far" toward private enterprise and away from open research, says Gregory D. Graff, a patent expert at Colorado State University.

What Is Islam?

If you've ever asked yourself, "What is Islam?"--or some variation thereof, you can begin to answer that question with the aid of a new publication to which yours truly has contributed: Encyclopedia of Islam, Juan E. Campo, ed. (2009). This one volume encyclopedia is available in both hardbound and paperback editions and is at once comprehensive and affordable. It is meant to be accessible to the general reader with little or no previous knowledge of this religious worldview. An accurate and succinct introduction is found on the back cover:

Encyclopedia of Islam is part of a set of encyclopedias on the religions of the world that emphasize the living faiths and their historical and social backgrounds. In about 550 A-Z entries, this encyclopedia provides easy access to the theological concepts, personalities, historical events, institutions, and movements that helped to shape Islam and the way it is practiced today.

[It] is designed to meet the demand for accurate information about Islam, particularly with regard to it place in the contemporary world. A wide range of entries covers Islam's historical origins, major traditions, and local customs, as well as the interrelationships between Islam and other religions and the customs and societies of civilizations that have been influenced by Islam.

A comprehensive introduction, further readings, cross-references, and a chronology, in addition to photographs, a general bibliography, and a thorough index, make Encyclopedia of Islam an easy-to-to use and essential reference for students, researchers, and general readers.

Juan Campo, one of my former teachers and now a dear friend, is an associate professor of Religious Studies at the University of California, Santa Barbara.

I contributed the entries on Civil Society; Constitutionalism; Constitutional Revolution (Iran); Democracy; Abu Nasr al-Farabi (early Islamic philosopher); Justice; Mu‘tazilah ('rationalist' school of Islamic theology); Philosophy; and jinni (co-authored with editor).

Please purchase a copy and recommend it to your local and school libraries.

Happy May Day (or International Workers' Day) !!!

Happy May Day everyone!

You can read about this holiday for workers in a post from last year on this date.

An early draft of my bibliography for "the world of work and labor law," posted as part of the PrawfsBlawg Research Canons project several years ago, is available here. Finding a book or two on the list you'll commit to reading would be a nice way to celebrate, especially if you're unable to join in any festive celebrations or workers' protest marches.

Christianity: A Select Bibliography

Our next bibliography in the Directed Reading series covers Christianity. As with our other lists, this one in no way aims to be comprehensive, let alone exhaustive, hence the adjective in the subtitle.

In deference to the fact that this is, after all, a law blog, I'd like to draw your attention to several titles in particular that well document the historical importance of Christian doctrines and ideas to the development of Anglo-American legal traditions. First, there's the two volumes of Harold J. Berman's magisterial study Law and Revolution: Vol. 1, Law and Revolution: The Formation of the Western Legal Legal Tradition (1983), and Vol. 2, Law and Revolution: The Impact of the Protestant Reformations on the Western Legal Tradition (2003). Far more modest in ambition and scope but by my lights no less significant are God's Just Vengeance: Crime, Violence and the Rhetoric of Salvation (1996) by Timothy Gorringe, and James Q. Whitman's The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008). I'm especially fond of the former work, if only because it explains my visceral dislike of Anselm's "satisfaction" theory of atonement. With Gorringe, it helps to recall that "In Anselm's day, at the end of the eleventh century, the life of a stag was worth more than that of a serf, but, although he was sensitive to the needs of 'Christ's poor,' Anselm nowhere adverts to the fact. [....] Bishops and archbishops [Anselm was the Archbishop of Cantebury] could hardly read Scripture except from the position of those who exercise power."

During the Middle Ages it was not unusual for the "Christ of doctrine [to be] far removed from the Galilean preacher, with his teachings about forgiveness, and who mingled with the poor, [as] ideas about the number of fallen angels took the place of concrete attention to the miseries and oppressions of the poor." Satisfaction atonement theory, what is otherwise and perhaps better known on this side of the Atlantic as "substitution" theory, was both influenced by and influenced penal thinking in Europe: "satisfaction theory emerged, in the eleventh century, at exactly the same time as the criminal law took shape. The two reacted upon each other: theology drew on legal notions and legal discussion, as the history of satisfaction doctrine makes clear, and law turned to theology for metaphysical justification." To make a long story short and vivid, "passion theology" on the order of Mel Gibson's film, The Passion of the Christ (2004), fashioned a "rhetoric of redeeming blood [that] found concrete expression in the London hanged:"

The rites and symbols of Christianity have been the means by which Western culture has sought to master the intractable features of human existence. These intractable features have included, at their centre, wickedness, guilt and punishment. The practical business of punishing offenders 'takes place within a cultural space which is already laden with meanings and which lends itself easily to symbolic use.' Christianity was wheeled in to validate the legal process through the taking of oaths (on a book which absolutely forbids them, as Tolstoy caustically noted), through assize sermons, and through the ministrations of chaplains at the gallows. In the prison Tolstoy describes in Resurrection 'hung the customary appurtenance of all places of barbarity--a large image of Christ, as it were in mockery of his teaching.' The suffering Christ, an icon of the wickedness of judicial punishment, became the focus of its legality, and the the need for the offender to suffer as he did. An image of torture provided the central construal of the cultural space within which punishment took place.

Finally, Christianity has played a role in the recent widespread interest in restorative theories of justice in both muncipal and international law contexts, much of it inspired by the seminal work of John Braithwaite, commencing with his book, Crime, Shame and Reintegration (1989). The transparent irony here is that this represents an understanding of Christian thought and praxis deeply at odds with the historical narrative sketched above. Lawrence W. Sherman has written a vigorous critique of the Christian ethics that inspires restorative justice theory: "Two Protestant Ethics and the Spirit of Restoration," in Heather Strang and John Braithwaite, eds., Restorative Justice and Civil Society (2001): 35-55. In the global society of states, restorative justice practices and mechanisms take place within broader phenomena that fall under the heading of transitional justice (see also here and here) and include, for example, the resort to "truth commissions" (see also here, here, here, and here) or, more controversially, reliance on systems of "local justice," like the gacaca courts in post-genocide Rwanda. (See too the bibliographies for 'Acknowledgement, Apology and Forgiveness,' 'Reconciliation and Transitional Justice,' 'Restorative Justice' and 'Christian Perspectives on Conflict Transformation, Nonviolence and Reconciliation,' edited by Catherine Morris for Canadian-based Peacemakers Trust. These are part of a larger bibliography on 'Conflict Transformation and Peacebuilding' 'intended as a starting place for...research on conflict resolution, alternative dispute resolution (ADR), peacebuilding or peace studies.')

Addendum: To further fill out our "Christianity and the law" theme, please see this post by Alfred Brophy at The Faculty Lounge discussing a response to Geoffrey Stone's 2008 Melville B. Nimmer Memorial lecture published in the UCLA Law Review: "The World of the Framers: A Christian Nation?" Brophy writes: "Heck, I'm tempted to join the fray with some talk of the nature of beliefs about Christianity in the antebellum era and at the time of the framing of the Confederate Constitution." I think we'll be forgiven if we pray he succumbs to temptation!

The following excerpts from two books by John Cottingham will endeavor to serve as a sensitive and in some respects normative introduction to our bibliography for Christianity:

In the history of philosophy, the epithet 'spiritual' is most commonly coupled not with the term 'beliefs' but with the term 'exercises.' Perhaps the most famous exemplar is the sixteenth-century Ejercicios espirituales ('Spiritual Exercises,' c. 1522-41) of St. Ignatius Loyola. As its name implies, this is not a doctrinal treatise, nor even a book of sermons, but a structured set of exercises or practices; it is a practical course of activities for the retreatant, to be followed in a prescribed order, carefully divided into days and weeks. [....] In Ignatius...we are dealing with a practical manual--a training manual--and the structured timings, the organized programmes of readings, contemplation, prayer, and reflection, interspersed with the daily rhythms of eating and sleeping, are absolutely central, indeed they are the essence of the thing. Ignatius himself opens the work by making an explicit parallel with physical training programmes: 'just as strolling, walking and running are exercises for the body, so 'spiritual exercises' is the name given to every way of preparing and disposing one's soul to rid itself of disordered attachments.' [....]

What holds good for any plausible account of the tradition of spiritual exercises also holds good more generally for any true understanding of the place of religion in human life: we have to acknowledge what might be called the primacy of praxis, the vital importance that is placed on the individual's embarking on a path of self-transformation, rather than (say) simply engaging in intellectual debate or philosophical analysis. [....] The philosopher Blaise Pascal was a striking advocate of this line of thought. His famous nuit de feu or 'night of fire' on November 23 1654--the intense religious experience that led to a radical change in his life--generated in him what he describes as feelings of 'heartfelt certainty, peace and joy' [cf. the Sanskrit formula, saccidananda in orthodox Indian philosophy and comparable descriptions of the Buddhist's nibbana.] But the God who is the source of these feelings is 'the God of Abraham, Isaac and Jacob,' not the God of 'philosophers and scholars.' Commentators have discussed the exact import of these words, but the general point is clear enough: faith, for Pascal, must arise in the context of a living tradition of practical religious observance, rather than from debate and analysis in the seminar room. This is consistent with Pascal's general philosophical stance on the epistemic status of religious claims, which may be described as proto-Kantian; questions about the nature and existence of God are beyond the reach of discursive reason. 'If there is a God,' says Pascal, 'he is infinitely beyond our comprehension...and hence we are incapable of knowing either what he is or whether he is.' And since reason cannot settle the matter, we have to make a practical choice, a choice on which our ultimate happiness depends. [....]

...[O]n any plausible understanding of the goodness of God, He cannot be supposed to bribe or threaten human beings with happiness or damnation. Standard Christian doctrine makes it clear, instead, that salvation is offered as the 'free gift of God' (in St. Paul's phrase); and that in any case, properly understood, it involves no mere affirmation or placing of a bet [a la Pascal's 'wager'], but a radical moral transformation--or, in the image of St. John's gospel, a new birth. Yet Pascal's position is in fact much more subtle than may at first appear. In the first place, though his wager discussion is often called 'the pragmatic argument,' he is emphatically not offering an argument for the existence of God.... In the second place, and very importantly, he is not offering an argument designed to produce immediate assent or faith in the claims of religion; in this sense, the image of placing a bet, an instantaneous act of putting down the chips, is misleading. Rather, he envisages faith as the destination--one to be reached by a long road of religious praxis; considerations about happiness are simply introduced as a motive for embarking on that journey. And thirdly and finally, the rewards invoked are not simply those of the next world (though that is, of course, how the wager is initially presented), but instead emerge by the end of his discussion as signal benefits related to the present life.

Pascal once famously observed: le coeur a ses raisons que la raison ne connait point--the heart has its reasons, which reason does not know at all. [In her 1988 paper, 'Love's Knowledge,' Martha Nussbaum has suggested] a persuasive variation on this enigmatic theme: there are certain kinds of truth such that to try to grasp them purely intellectually is to avoid them. What I am proposing (and what seems to me to underlie the Pascalian position on faith and praxis) is that religious truth should be seen as falling into just this category. [....]

[N]othing in the idea of the primacy of practice necessarily involves a permanent abandonment of critical rationality. [....]

The "peace envisaged" in Dante's maxim that "in his will is our peace," is not mere tranquillisation or externally engineered submission to a higher power, but is the peace of an autonomous being whose reason has recognised the truth of the ancient religious idea: to serve goodness is the most perfect freedom. [....]

[I]f there is an infinite, self-subsistent being behind the phenomenal world, one might well expect it to be beyond the grasp of our normal literal and scientific language, and thus reasonably suppose that it can be glimpsed, if at all, only via intimations, or symbolic or other figurative modes of discourse. [....]

...Kant famously said that he went 'beyond knowledge in order to make room for faith.' Science, on the Kantian view, is confined to describing the phenomenal world; and what lies beyond the horizon of science cannot therefore be proved--but neither can it be disproved. It follows from this that what is 'impossible,' in the sense of not being a possible object of human knowledge, can nevertheless be a proper object of faith. According to Kant, I cannot prove (or disprove) God; yet because it would be humanly impossible to devote my life to the good if I thought I was striving after 'a conception which at bottom was empty and had no object,' it is appropriate for 'the righteous man to say "I will that there be a God...I firmly abide by this and will not let this faith be taken from me."' [....] Like Descartes and Pascal before him, who thought our human reason could not comprehend infinite being, Kant allowed for a transcedent reality outside the phenomenal world, one that we cannot reach by demonstrative inquiry, but one it makes sense to believe in, and for which (Kant went on to insist) our human existence has a profound need. [....]

God's existence may not be the conclusion of a valid argument, or a plausible empirical hypothesis; affirming a transcendent being is thus in this sense a leap into the unknown--a leap beyond the boundaries of discursive knowledge. But for all that, for the believer it is more than a blind leap, more than a mere act of will, since the belief resonates in a striking way with occasional but powerful intimations, enduring traces that are manifest in the moral and spiritual fabric of our lives. [....]

The Christian understanding of the Incarnation involves "the idea that the 'inaccessible light' of the divinity (1 Timothy 6:16) becomes visible in the person of one human being who is the 'icon of the invisible God' (Colossians 1:15). [....]

The Freudian diagnosis has been highly influential, and can often be seen as informing the idea, voiced by many contemporary atheists, that God is merely a projection formed in response to our human insecurities. But there are at least two problems with this way of dismissing the religious impulse. First, though the abject helplessness of the infant is an apt image of the fragility of the human plight, that fragility, as Freud's own analysis affirms, is clearly not confined to infancy. Our vulnerability, and that of our loved ones, to death, disease and accident is an inescapable part of the human condition; and this being so, to be appropriately aware of it seems precisely what a normal rational human ought to be (even granted that constantly dwelling on it may be a sign of neurosis). In the second place, talk of God as a projection does not in the end advance the debate between theists and atheists very much, since it cannot settle the question of whether the impulse to project our longings outwards to an external source does or does not have an objective counterpart. It is certainly plausible that frail and insecure humans would want to project their need for security onto a protective heavenly Father; but a religious believer can equally maintain that since our true destiny lies in union with our creator, we will naturally feel insecure and restless until we find Him. Indeed, precisely this latter theme turns out to be the refrain of many ancient writers on theistic spirituality: nata est anima ad percipiendum bonum infinitum, quod Deus est; ideo in eo solo debet quiescere et eo frui--'the soul is born to perceive the infinite good that is God, and accordingly it must find its rest and contentment in Him alone.' The result of the debate over projection is thus a stand-off: the fact that humans feel a powerful need for God's loving protection logically says nothing either way about whether that protection is a reality.

...[I]t is logically impossible for a perfect being to create something other than itself that is wholly perfect (for a wholly perfect being would just be identical with God). So if he is to create anything at all, God must necessarily create something less perfect than himself; creation necessarily operates, as a long tradition going back to Augustine has it, by what we may think of as a subtraction or diminution from the perfect divine essence.

---John Cottingham

References and Further Reading:

• Cottingham, John. On the Meaning of Life. London: Routledge, 2003.
• Cottingham, John. The Spiritual Dimension: Religion, Philosophy and Human Value. Cambridge, UK: Cambridge University Press, 2005.
• Haught, John F. Is Nature Enough? Meaning and Truth in the Age of Science. Cambridge, UK: Cambridge University Press, 2006.
• Kellenberger, James. The Cognitivity of Religion: Three Perspectives. Berkeley, CA: University of California Press, 1985.
• Smart, J.J.C. and J.J. Haldane. Atheism & Theism. Malden, MA: Blackwell, 2nd ed., 2003.
• Smart, Ninian (Donald Wiebe, ed.). Concept and Empathy: Essays in the Study of Religion. Washington Square, NY: New York University Press, 1986.
• van Inwagen, Peter, ed. Christian Faith and the Problem of Evil. Grand Rapids, MI: William B. Eerdmans, 2004.
• Wierzbicka, Anna. What Did Jesus Mean? New York: Oxford University Press, 2001.

Torture: Moral, Legal & Political Dimensions--A Select Bibliography (or requisite reading)

• Bagaric, Mirko and Julie Clarke. Torture: When the Unthinkable is Morally Permissible. Albany, NY: State University of New York Press, 2007.
• Bassiouni. M. Cherif. "The Institutionalization of Torture under the Bush Administration," Case Western Reserve Journal of International Law, Vo. 37, Nos. 2-3 (2006): 389-425.
• Bennoune, Karima. “Terror/Torture,” Berkeley Journal of International Law, Vol. 26, No. 1 (2008): 1-61. Available: http://ssrn.com/abstract=1148284
• Brecher, Bob. Torture and the Ticking Bomb. Malden, MA: Blackwell, 2007. [See too C.A.J. Coady’s review for Notre Dame Philosophical Reviews, 2009.02.09. Available: http://ndpr.nd.edu/review.cfm?id=15385]
• B’Tselem (The Israeli Information Center for Human Rights in the Occupied Territories) and HaMoked—Center for the Defence of the Individual, “Absolute Prohibition: The Torture and Ill-Treatment of Palestinian Detainees,” (May 2007). Available: http://www.btselem.org/Download/200705_Utterly_Forbidden_eng.pdf
• Bufacchi, Vittorio and Jean Maria Arrigo. "Torture, Terrorism and the State: a Refutation of the Ticking-Bomb Argument," Journal of Applied Philosophy, Vol. 23, No. 3 (2006): 355-373.
• Cassese, Antonio, ed. The Oxford Companion to International Criminal Justice. New York: Oxford University Press, 2009.
• Conroy, John. Unspeakable Acts, Ordinary People: The Dynamics of Torture. Berkeley, CA: University of California Press, 2001.
• Crocker, Thomas P. “Overcoming Necessity: Torture and the State of Constitutional Culture,” SMU Law Review, Vol. 61, No. 2 (2008): 221-279. Available: http://ssrn.com/abstract=1116680
• Crocker, Thomas P. “Torture, with Apologies,” Texas Law Review, Vol. 86, No. 3 (2008): 569-613. Available: http://ssrn.com/abstract=1102495
• Cryer, Robert, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst. An Introduction to International Criminal Law and Procedure. Cambridge, UK: Cambridge University Press, 2007.
• Danner, Mark. Torture and Truth: America, Abu Ghraib, and the War on Terror. New York: New York Review of Books, 2004.
• Danner, Mark. “U.S. Torture: Voices from the Black Sites,” The New York Review of Books, Vol. LVI, No. 6 (April 9, 2009): 69-77. Available: http://www.nybooks.com/articles/22530
• Danner, Mark. “The Red Cross Torture Report: What It Means,” The New York Review of Books, Vol. LVI, No. 7 (April 30, 2009): 48-56. Available:
  http://www.nybooks.com/articles/22614
• Dayan, Colin. The Story of Cruel and Unusual. Cambridge, MA: MIT Press (A Boston Review Book), 2007.
• Fleck, Dieter, ed. The Handbook of International Humanitarian Law. New York: Oxford University Press, 2nd ed., 2008.
• Gaeta, Paola. "May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?" Journal of International Criminal Justice, Vol. 2, No. 3 (2004): 785-794.
• Ginbar, Yuval. Why Not Torture Terrorists? Moral, Practical and Legal Aspects of the ‘Ticking Bomb’ Justification of Torture. New York: Oxford University Press, 2009.
• Goldsmith, Jack. The Terror Presidency: Law and Judgment Inside the Bush Administration. New York: W.W. Norton, 2007.
• Greenberg, Karen, ed. The Torture Debate in America. Cambridge, UK: Cambridge University Press, 2006.
• Greenberg, Karen and Joshua L. Dratel, eds. The Torture Papers: The Road to Abu Ghraib. Cambridge, UK: Cambridge University Press, 2005.
• Guiora, Amos N. and Erin M. Page. "The Unholy Trinity: Intelligence, Interrogation and Torture," Case Western Reserve Journal of International Law, Vol. 37, Nos. 2-3 (2006): 427-447.
• Hajjar, Lisa. Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. Berkeley, CA: University of California Press, 2005: 49-75 and 185-207.
• Haque, Adil Ahmad. “Torture, Terror, and the Inversion of Moral Principle,” New Criminal Law Review, Vol. 10, No. 4 (2007): 613-657.
• Harbury, Jennifer K. Truth, Torture, and the American Way: The History and Consequences of U.S. Involvement in Torture. Boston, MA: Beacon Press, 2005.
• Horton, Scott. “Justice after Bush: Prosecuting an Outlaw Administration,” Harper’s Magazine, December 2008. Available: http://www.harpers.org/archive/2008/12/0082303
• Hunsinger, George, ed. Torture is a Moral Issue: Christians, Jews, Muslims and People of Conscience Speak Out. Grand Rapids, MI: Wm. B. Eerdmans Publ., 2008.
• Ip, John. "Two Narratives of Torture" (April 10, 2009) Northwestern University Journal of International Human Rights, Vol. 7, No. 1, p. 35, 2009. Available at SSRN: http://ssrn.com/abstract=1292585
• Lazreg, Marnia. Torture and the Twilight of Empire: From Algiers to Baghdad. Princeton, NJ: Princeton University Press, 2008.
• Lee, Patrick. "Interrogational Torture," American Journal of Jurisprudence, Vol. 51 (2006): 131-147.
• Levi, William Ranney. "Interrogation's Law" Yale Law Journal (April 17, 2009), Forthcoming. Available: http://ssrn.com/abstract=1389511
• Levinson, Sanford, ed. Torture: a Collection. New York: Oxford University Press, 2004.
• Linnartz, Isaac A. "The Siren Song of Interrogational Torture: Evaluating the U.S. Implementation of the U.N. Convention against Torture," Duke Law Journal, Vol. 57, 5 (2008): 1465-1516.
• Luban, David. “Liberalism, Torture and the Ticking Time Bomb,” 91 Virginia Law Review (2005): 1425-1461. Available: http://www.virginialawreview.org/content/pdfs/91/1425.pdf
• Luban, David. “The torture lawyers of Washington,” in Legal Ethics and Human Dignity. Cambridge, UK: Cambridge University Press, 2007: 162-225.
• Luban, David. “Unthinking the Ticking Bomb,” Georgetown Public Law Research Paper, No. 1154202. Available: http://ssrn.com/abstract=1154202
• Marks, Jonathan H. “Doctors as Pawns? Law and Medical Ethics at Guantánamo Bay,” Seton Hall Law Review, Vol. 37 (2007): 711-731. Available: http://ssrn.com/abstract-983815
• May, Larry. War Crimes and Just War. Cambridge, UK: Cambridge University Press, 2007.
• Mayer, Jane. The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals. New York: Doubleday, 2008.
• Mayerfield, Jamie. "Playing by Our Own Rules: How U.S. Marginalization of Human Rights Law Led to Torture," Harvard Human Rights Journal, Vol. 20 (2007): 89-140.
• Mayerfield, Jamie. “In Defense of the Absolute Prohibition of Torture,” Public Affairs Quarterly, Vol. 22, No. 2 (April 2008): 109-128.
• McCoy, Alfred W. A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror. New York: Owl Books/Henry Holt, 2006.
• McMahan, Jeff. “Torture, Morality, and Law,” Case Western Reserve Journal of International Law, Vol. 37, Nos. 2 and 3 (2006): 241-248. Available: http://philosophy.rutgers.edu/FACSTAFF/BIOS/mcmahan.html
• Meisels, Tamar. "Torture and the Problem of Dirty Hands," The Canadian Journal of Law and Jurisprudence, Vol. 21, 1 (2008): 149-173.
• Miles, Steven H. Oath Betrayed: Torture, Medical Complicity and the War on Terror. New York: Random House, 2006.
• Miller, Seumas. “Is Torture Ever Morally Justified?” International Journal of Applied Philosophy, Vol. 19, No. 2 (2005): 179-192.
• Miller, Seumas, “Torture,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/torture/.
• Nowak, Manfred and Elizabeth McArthur. The United Nations Convention Against Torture. New York: Oxford University Press, 2008.
• Otterman, Michael. American Torture: From the Cold War to Abu Ghraib and Beyond. Carlton, Victoria: Melbourne University Press, 2007.
• Parry, John T. "The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees," Melbourne Journal of International Law, Vol. 6, 2 (2005): 516-533.
• Parry, John T. "Torture Nation, Torture Law," The Georgetown Law Journal, Vol. 97, 4 (April 2009): 1001-1056. Available: http://www.georgetownlawjournal.org/issues/pdf/97-4/Parry.PDF
• Paust, Jordan J. “The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions,” Valparaiso University Law Review, Vol. 43 (2009). University of Houston Law Center, No. 2009-A-7. Available: http://ssrn.com/abstract=133159
• Public Committee Against Torture in Israel. "'Ticking Bombs:' Testimonies of Torture Victims in Israel," May 2007: http://www.stoptorture.org.il/files/140[1].pdf
• Public Committee Against Torture in Israel. "No Defense: Soldier Violence Against Palestinian Detainees," Periodic Report: June 2008: http://www.stoptorture.org.il/files/No_Defense_Eng.pdf
• Public Committee Against Torture in Israel. "'Family Matters:' Using Family Members to Pressure Detainees Under GSS Interrogation," April 2008: http://www.stoptorture.org.il/files/Fmily%20Matters%20full%20report%20eng.pdf
• Public Committee Against Torture in Israel v. State of Israel and Others (HC 5100/94...) Supreme Court of Israel, 7 BHRC 31, 6 September 1999.
• Rejali, Darius. Torture and Democracy. Princeton, NJ: Princeton University Press, 2007.
• Rhodes, Lorna. Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press, 2004.
• Riggs, Kate and Richard Blakeley. "Prolonged Mental Harm: The Tortuous Reasoning Behind a New Standard for Psychological Abuse," Harvard Human Rights Journal, Vol. 20 (2007): 263-292.
• Roth, Kenneth and Minky Worden, eds. Torture: A Human Rights Perspective. New York: The New Press, 2005.
• Sadat, Leila Nadya. “Extraordinary Rendition, Torture and Other Nightmares from the War on Terror.” The George Washington Law Review, Vol. 75 (2007): 101-149. Available: http://ssrn.com/abstract=1008568
• Sands, Philippe. Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. New York: Palgrave Macmillan, 2008.
• Schulz, William F., ed. The Phenomenon of Torture: Readings and Commentary. Philadelphia, PA: University of Pennsylvania Press, 2007.
• Shue, Henry. “Torture,” Philosophy and Public Affairs, Vol. 7, No. 2 (1978): 124-143.
• Shue, Henry. “Torture in Dreamland: Disposing of the Ticking Bomb,” Case Western Journal of International Law, Vol. 37 (2006): 231-239.
• Strauss, Marcy. "Torture," New York Law School Law Review, Vol. 48, Nos. 1-2 (2004): 201-274.
• Sussman, David. “What’s Wrong with Torture?” Philosophy and Public Affairs, Vol. 33 (2005): 1-35.
• Waldron, Jeremy. “Cruel, Inhuman, and Degrading Treatment: The Words Themselves,” New York University School of Law, Public Law Research Paper No. 08-36 (November 2008): 1-47. Available: http://ssrn.com/abstract=1278604
• Waldron, Jeremy. “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review, Vol. 105, No. 6 (2005): 1681-1750.
• Wendel, W. Bradley. “Executive Branch Lawyers in a Time of Terror,” 2008 F.W. Wickwire Memorial Lecture. Available: http://ssrn.com/abstract=1372744
• Werle, Gerhard. Principles of International Criminal Law. The Hague: T.M.C. Asser Press, 2005.

Please Note: I've added a handful of items since the date this was first posted.

Sunstein on the Federalist Papers

Check out Cass Sunstein's essay on federalism and republicanism in the March 26th issue of the New York Review of Books. Here's a sample.

To many modern readers, the Federalist Papers seem formal, musty, old, and a bit tired—a little like a national holiday that celebrates events long past but lacks any sense of struggle and excitement, or even a clear message. But under stringent time pressure, starting in October 1787, Alexander Hamilton, James Madison, and John Jay, writing under the name of "Publius," produced the best historical record, by far, of the uniquely American contribution to political thought and practice.

It is important to see that their arguments were a product of a concrete historical drama, involving the fate of an emerging nation that was having an exceedingly difficult time governing itself. But Publius's claims bear not only on American debates of the eighteenth century, but also on those of the nineteenth, twentieth, and twenty-first. They offer lessons for making war and making peace, and for domestic crises of many different kinds. Indeed, they provide guidance for constitutional democracies elsewhere, not least when peace and prosperity are endangered.

Publius's project was to reconceive republicanism—a body of thought with ancient origins in Aristotle and Cicero whose modern forms had been elaborated in different ways by Machiavelli, Rousseau, and Montesquieu. Emphasizing self-rule by the people, republicans insisted on the importance of civic virtue and generally believed that self-government works best in small, homogeneous republics. According to the argument of the Federalist Papers, however, such small republics tend to destroy themselves. The reason lay in the power of factions—well-organized private groups with passions or interests inconsistent with the good of the public as a whole. Publius believed that in a large republic, a heterogeneous public could counteract factional power and serve as a creative force, promoting circumspection and introducing safeguards against bias, error, confusion, and even oppression. (Footnotes omitted)

The entire essay can be found here.

I have my doubts that Sunstein's succeeds in establishing the compatibility, let alone the synthesis, of federalism and republicanism. Federalists were suspicious of the people. John Adams feared elections and Fisher Ames believed that "a republic which differs more widely from a democracy than a democracy from a despotism. The rigours of a despotism often oppress only a few, but it is the very essence and nature of a democracy, for a faction claiming to oppress a minority, and that minority the chief owners of the property and truest lovers of their country." This doesn't lend itself to interpetation as federalism embracing deliberative democracy. By contast Republicans feared government. The reconciliation between these two paradigms or attitudes has never been achieved. Moveover, contrary to Sunstein's claim that deliberative democracy preserves accountability, it's not clear that he takes accountability seriously at all. According to Sunstein, the federalist system of checks and balances is designed to promote the republican value of deliberative democracy. In such a system, judicial review is designed to ensure that We the People would remain superior to [their] rules." But this raises a problem endemic to all judicial constitutionalists. Both empirically and conceptually, the claim that the Court protects the people is dubious. In short, who protects We the People, their rulers, and the Constitution from incursions of ultra vires judicial decisions? Judicial constitutionalists rarely, if ever, provide plausible reasons in support of the Court's lack of accountability. Oh yes, judicial constitutionalists recite a litany of implausible reasons, such as, the Court's impartiality, its vital role in protection individual rights, and so forth. But none of these reasons succeed in explaining how the Court can work its will and at the same time be constrained by and accountable to the will of We the People. The design and application of American constitutionalism has created what is usefully called a "dead-end republicanism," a polity where public rhetoric valorizes self-rule, but whose reality creates various structures such as judicial supremacy, where self-rule is checked by an unchecked branch of government. No self-respecting republicanism can tolerate such a government so removed from self-rule

Judaism & Jewish Philosophy: A Selected Bibliography

Having recently posted bibliographies for Hinduism, Classical Chinese Worldviews, and Buddhism as part of the larger Directed Reading series, we move on to the so-called Western monotheistic traditions of Judaism, Christianity, and Islam, sometimes referred to as the "religions of Abraham." And "so-called" because the geo-historical boundaries between East and West are not sharp, in this instance illustrated by the fact that these are Semitic worldviews, the word Semite referring to "a member of any of various ancient and modern people originating in southwestern Asia, including Akkadians, Canaanites, Phoenicians, Hebrews, Arabs, and Ethiopian Semites." Yet it is these Semitic traditions that are central to what we call Western civilization(s). The fuzziness of geo-historical boundaries is reinforced with the case of Zoroastrianism, often cited as "uniquely important in the history of religion because of its possible formative links to both Western and Eastern religious traditions." Indeed, those links are indirectly or implicitly revealed in Barbara Holdrege's groundbreaking comparative study, Veda and Torah: Transcending the Textuality of Scripture (1995).

The oldest of these Semitic religious worldviews is of course Judaism, and hence the first of our next three bibliographies. Yet our list goes beyond religion as such in so far as many self-described Jews are of secular or humanist orientation and thus not religious, however much they identify with this or that aspect of Jewish history, culture or philosophy, or even simply the modern state of Israel. Modern narratives of Western intellectual history rightly grant pride of place to such emblematic or iconic secular Jews as Marx, Freud and Einstein, thereby according a rather different meaning to the adjectival phrase "Judeo-Christian" when speaking to the character of Western civilization (its other face being Greco-Roman; and we might endeavor to appreciate the Islamo-Christian quality of this civilization as well). For our bibliography, this secular or humanist Jewish dimension is confined to that which falls within the rubric of Jewish philosophy and explains the title of this particular compilation.

Perhaps needless to say, there are no hard and fast boundaries between religion and philosophy, a fact far easier to appreciate in the case of Asian worldviews but no less important with regard to Western civilization(s). For instance, the theodicy question that arises from an examination of the problem of evil in theistic belief (i.e., belief in an omnipotent, omniscient and omnibenevolent deity alongside the facts of suffering and evil as intrinsic to the human condition) is an unavoidable one for all sincere Jews, Christians and Muslims, a question that appears resistant if not unamenable to rationalist resolution but is no less urgent for all that. Now even if one is not a theist, as are atheists or agnostics (keeping in mind that one might, like the Buddhist, be religious and non-theist), the question of evil or suffering simpliciter is unavoidable and the possible answers, while now of "naturalist" or "materialist" construction, are no less poignant or urgent, at the very least they are not ready-made. More generally, discussions of the "meaning of life" make mincemeat of sharp divisions between religion and philosophy (even if there was a time in the world of anglophone analytic philosophy when this would have been derisively dismissed as a 'pseudo-' or meaningless question!), and one of the merits of non-religious existentialist philosophy (or humanistic psychology for that matter) is that it confronted this topic in a forthright and relatively clear manner (cf. Owen Flanagan's The Really Hard Problem: Meaning in a Material World, 2007, a recent attempt to deal seriously with this 'meaning' question from the premises of a naturalistic metaphysics). We might, with John Haldane (in his essay, 'On the Very Idea of Spiritual Values,' in Anthony O'Hear, ed., Philosophy, the Good, the True and the Beautiful, 2000), think too of the perspectives provided by non-religious yet "spiritual" philosophies, such as the Hellenistic "therapies of desire" analyzed by Martha Nussbaum. Jewish philosophy may be avowedly non-religious, but perhaps on occasion it is nevertheless "spiritual," in either case it does not avoid the inevitable question of evil and suffering.

It is not only the treatment of common topics or questions, or the focus on particular kinds of experience, virtue ethics and contemplation, that make the boundaries between religions and philosophies porous, but the vigorous cognitive or rational dimensions found within religions (cf. James Kellenberger's outline of the 'third perspective' in The Cognitivity of Religion: Three Perspectives, 1985; the 'natural theology' tradition of Catholicism; and Oliver Leaman's remark in A Brief Introduction to Islamic Philosophy, 1999, that 'I do not know if it is ever useful to rank religions with respect to rationality, but were this to be done, there is little doubt that Islam would score highly. There are many references to the importance of reason in the Qur'an, and Islam seems to take pride, at least in its early years, in presenting itself as highly rational.') that likewise attest to the welcome and ineluctable philosophical permeability of religious worldviews. The figure of Moses Maimonides, for instance, is compelling evidence of the proposition that it is not always easy to distinguish Jewish religious tradition from Jewish philosophical tradition. Philosophy is a strong and essential element of the Oral Law in Judaism and it came to be an equally vibrant component of the kabbalistic mystical tradition (As Leaman notes, 'In most cases, the mystical understandings of Judaism had no difficulty in linking up with the rational and legal approach....').

Tribe's Invisible Constitution

Constitutional scholars are inclined to dub their favorite conceptions of American constitutionalism as a Constitution of a certain kind. Here are some examples: the living Constitution, the perfect Constitution, the strategic constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, the dead Constitution, the enduring Constitution, and the Constitution in exile. Laurence Tribe, one of the most influential constitutional scholars of the twentieth century, has now added to this list with his new book, The Invisible Constitution. Anything Tribe writes is worth the read, especially one taking a stand on the jurisprudence of constitutional law. In this book, Tribe sets himself two goals. First, he wants to demonstrate that there exists an invisible Constitution which is as authoritative as the written Constitution; indeed, in some respects, it is even more authoritative. Second, he proposes several models for discerning just what this invisible Constitution says. Here is his statement of the invisible Constitution.

[I]t seems obvious that we must have an invisible Constitution as well as a visible one: it's the invisible Constitution that tells us what text to accept as the visible Constitution of the United States, as well as how much force to ascribe to that text. True, we can argue endlessly about just what the invisible Constitution says--but that doesn't distinguish it from the visible Constitution, whose meaning, and even whose contents, are often very much in contention. The visible Constitution most of us have come to accept or at least to work within certainly doesn't answer very many persistent questions about what it means in any particular case and at any particular time. (p. 7)

The invisible Constitution is necessary for us to understand the visible Constitution in the first place. Many questions we ask about the Constitution and its implications are not contained in either the text or in the original meaning of the Constitution. For Tribe "the visible Constitution necessarily floats in a vast and deep--and, crucially, invisible--ocean of ideas, proposition, recovered memories, and imagined experiences that the Constitution as a whole puts us in a position to glimpse." (p. 9) This view differs from the idea of an unwritten Constitution in two ways: (1) Tribe's task is not an attempt to justify unelected judges monitoring the constitutional choices of other constitutional actors. Rather, it applies to anyone attempting to interpret the Constitution. (2) More importantly, Tribe's "interest is less in what's invisible "around" the Constitution than in what is invisible within it." (p. 10) Consequently, Tribe is not taking sides on the issue of whether the Court is or should the proper constitutional actor to have the final say on constitutional meaning. His task is to seek the extra-textual constitutionality within the textual constitution itself for any interpreter of the Constitution.

According to Tribe, none of the conventional questions about interpretation can make sense independently of the invisible Constitution. For example, concerning the use of originalism and history in constitutional interpretation, Tribe insists that our job is to determine whether rules,

retain their 'original meaning' as reflected in the authors' specific expectations or believe instead that such rules express more general principles or concepts that need to be adapted to changing circumstances if they are to remain faithful to their original purposes. Deciding what the relevant 'history' . . . is, as well as discovering the facts pertinent to that history, will entail making fundamental choices about what fidelity in historical and purposive interpretation means about what kind of rule we are dealing with, and about the appropriate frame of reference through which (and the appropriate level of generality at which) to understand the history bearing on that sort of rule, And for none of those choices should we expect much guidance from the text--from the visible Constitution. (p. 67)

Tribe is surely correct that these questions must be answered in order for us to appeal to textual provisions and apply them to particular constitutional controversies. But why should these extra-textual activities suggest the existence of an invisible Constitutional. Ordinarily, these questions are part of constitutional theory or constitutional jurisprudence and do not suggest the existence of an invisible Constitution in any illuminating sense.

The major problem with Tribe's project is the distinction between what is in the Constitution and what's around it. This distinction is not pellucid and simply will not do the work Tribe needs it to do in order to distinguish his position from those advocating the unwritten Constitution and other forms of extra-textual constitutionality. However, Tribe needs to distinguish his position from these scholars if his "invisible Constitution" is to retain any uniqueness or for Tribe's views to make an original contribution to constitutional theory at all. His penchant for insisting that there exist "invisible, nontextual foundations" (p. 11) to the visible Constitution doesn't add much to the work of such different constitutional scholars as Bruce Ackerman, Ronald Dworkin, and Thomas Grey, among many others. Tribe is not merely speaking of non-textual presumptions, assumptions, or implicit rights and powers. He seems to be making an astonishing ontological claim that there exists an independent, coherent invisible Constitution that if made visible (textual) would constitute a distinctly different and independent constitutional document than the written Constitution. If Tribe's view doesn't reveal such a "document," it really becomes indistinguishable from the views of those scholars that acknowledge the existence and importance of extra-textual constitutionality, the necessarily oil that makes the engine of the written Constitution work.

Where Tribe's position promises to be original is in providing a method according to "which we might best visualize and articulate the rules, principles, and rights that are part of out Constitution but are not discernible in or directly derivable from portions of its text." (p. 155) The process of visualizing the rules and rights in the invisible Constitution is more "a question amenable in the first instance less to theory than to observation." (Id.) Tribe suggests six models for observing the invisible Constitution. In fact, Tribe identifies "six distinct but overlapping modes of construction in forming the invisible constitution: geometric, geodesic, global, geological, gravitational, and gyroscopic." (Id.) These models are drawn in color, different colors having independent significance for identifying different aspects of the invisible Constitution. (The diagrams are presented between pages 156-57. ) Here's where an overwhelming difficulty in Tribe's presentation occurs. There is absolutely no real guidance in how to understand these diagrams. Perhaps for those with a sufficient background in the sciences, including the idea of the 'dark matter' they're supposed to discover, these models will make some intuitive sense, but they will make no sense to many others. How many constitutional scholars will find these diagrams useful, let alone perspicuous? Indeed, how many intellectuals generally or educated members of the general public will appreciate the significance of these diagrams? Certainly law students will be mystified. I make no claim about whether the models Tribe describes are accurately illustrated by his diagrams. Indeed, it's difficult to appreciate what counts as "correct illustrations" in this context. Unfortunately, this leaves us in the unenviable position of having no way to know whether these models have the capacity to identify Tribe's invisible Constitution. One thing we can be pretty certain of is this. Whether these models identify the invisible Constitution, even if we can supply an intelligible notion of what that means, it will not be obvious that they do so. One is only left to puzzle over what possessed this first-rate constitutional scholar to indulge his own idiosyncratic predilections in constructing these models--which he obviously finds illuminating--and present them as illuminating vehicles for understanding something called the "invisible Constitution." Unfortunately, together with the unoriginality of the first part of his book--in positing the existence of an invisible Constitution in contrast to an unwritten Constitution, and other forms of extra-textual constitutionality--and the incomprehensibility of the second part of this book, one can only ruefully conclude that this book is disappointing. This does not mean there is nothing of value in this book. Tribe aptly demonstrates that textual constitutionality cannot be understood without non-textual assumptions. But this is hardly novel. So-called non-interpretivists, realists, pragmatists and others have been urging this conclusion for the past several decades. Moreover, such a demonstration says nothing about the existence of anything accurately called "the invisible Constitution" or the models for identifying its existence. I conclude reluctantly that the Invisible Constitution will not provide a significant addition to the work on extra-textual constitutional meaning.

We Are All Judicial Activists Now

Our own Professor Lipkin has made available his latest publication, "We Are All Judicial Activists Now," at SSRN [Citation info.: Lipkin, Robert Justin, 'We Are All Judicial Activists Now' (February 21, 2009). University of Cincinnati Law Review, Vol. 77, 2008. Available at SSRN: http://ssrn.com/abstract=1347425]. As Larry Solum notes at the Legal Theory Blog, Recommended!

In Case You Missed It...

I want to draw your attention to some posts I thought stood out around the blogosphere for their fairly sophisticated treatment of their respective topics, or simply because the information they provide us is timely if not urgent owing to its political or legal salience. Of course my judgments on this score are invariably a tad idiosyncratic but....

First, Kevin Jon Heller, guest blogging at Balkinization, has an extended discussion of the "The Justice Case," or United States of America v. Alstötter et al. [3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948)]: "John Yoo and the Justice Case."

Relatedly, at EJIL:Talk! (the blog of the European Journal of International Law), one of the newer (and best of the) international law blogs, see Dapo Akande on the "Prosecutions of US Officials for Torture? Some Issues."

And while we're on international law and politics, two posts from IntLawGrrls are quite informative: first, Rebecca Bratspies on "Worldwide Food Insecurity," and Naomi Norberg on "Iran's Inexorable Sexual Revolution."

At the International Criminal Law Bureau, Cathy Mac Daid introduces us to the 2009 World Report from Human Rights Watch.

At The Immanent Frame, Richard Madsen has a series of posts exploring the relevance of Charles Taylor's much discussed book, A Secular Age (2007), to religious worldviews in Asia. Scroll down to his first post on Feb. 5, "Discerning the Religious Spirit of Secular States in Asia" (the next two posts follow in order).

From Mark Thoma of Economist's View, we learn of an ad that recently appeared in the Washington Post in support of The Employee Free Choice Act and signed by not a few prominent and lesser known economists.

Andrew Perlman raises important issues concerning the election of state judges at the Legal Ethics Forum: see here and here.

The wonderful online Stanford Encyclopedia of Philosophy has a new entry on "the philosophy of technology."

Guest blogger Brian J. Foley stirs things up at PrawfsBlawg with his post, "USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)." Not a few of the comments reveal a lack of familiarity with just war theory, international criminal law and the literature on "humanitarian intervention."

At the Neuroethics & Law blog, Daniel Goldberg has a provocative post on Michael Pardo and Dennis Patterson's recent paper, "Philosophical Foundations of Law & Neuroscience." Peter Reiner continues the discussion with "Neuroreductionism: not dead yet." Time constraints prevented me from adding my own two cents worth in the comments, but I'm largely in agreement with Daniel and perhaps even more persuaded by Pardo and Patterson's argument than he is.

Lastly, an important review by C.A.J. Coady at Notre Dame Philosophical Reviews (NDPR) on Bob Brecher's Torture and the Ticking Bomb (2007).

How Lawyers Write

(I've been posting reactions to our weekly faculty workshops at the Marquette Faculty Blog. This post is part of that series.)

This week’s faculty workshop presenter was our very own Professor Jessica Slavin, whose talk was entitled “Talking Back to IRAC: Legal Writing Beyond the Paradigm.” The project on which the talk was based has two components. First, Professor Slavin traced the history and questioned the utility of using IRAC and related formulas as vehicles for teaching legal writing. Second, she presented the results of her own empirical study of briefs submitted to the Wisconsin Supreme Court, which suggest that something other than strict adherence to IRAC characterizes the brief writing of at least one set of advocates.

To me, this is interesting and provocative stuff. I find the psychology of writing fascinating (put it together with the process of judging and I could maybe write a whole article about it). Having tried to teach a writing class once, I’ve experienced first hand just how difficult it is to articulate what makes for good writing. For me, at least, this is partly because I go about my own writing in a highly intuitive way. I don’t recall ever consistently thinking about IRAC when writing in a legal context, and I cannot articulate many of the rules of grammar (although I consciously violate some of the more ridiculous “rules,” such as the ones about split infinitives and prepositions at the end of sentences). Given all this, I share Professor Slavin’s sense that there’s something not quite right about a method of teaching writing that suggests that it is somehow a mechanical or rule-driven process. This is not (on my part, at least) to suggest that IRAC-like formulas are not useful, but rather that they are incomplete.

Lately my bedtime reading has included large helpings of the flat-out brilliant David Foster Wallace. (RIP) Wallace, in his essay “Authority and American Usage,*” provides perhaps the best statement I’ve seen about why it’s so hard to teach writing, and why constructs like IRAC seem to fall short. He writes of “the error that most Freshman Composition classes spend all semester trying to keep kids from making – the error of presuming the very audience-agreement that it is really their rhetorical job to earn.” He continues, characteristically, in a footnote:

Helping them eliminate the error involves drumming into student writers two big injunctions: (1) Do not presume that the reader can read your mind – anything you want the reader to visualize or consider or conclude, you must provide; (2) Do not presume that the reader feels the same way that you do about a given experience or issue – your argument cannot just assume as true the very things you’re trying to argue for.

Because (1) and (2) are so simple and obvious, it may surprise you to know that they are actually incredibly hard to get students to understand in such a way that the principles inform their writing. The reason for the difficulty is that, in the abstract, (1) and (2) are intellectual, whereas in practice they are more things of the spirit. The injunctions require of the student both the imagination to conceive of the reader as a separate human being and the empathy to realize that this separate person has preferences and confusions and beliefs of her own, p/c/b’s that are just as deserving of respectful consideration as the writer’s. More, (1) and (2) require of students the humility to distinguish between a universal truth (“This is the way things are, and only an idiot would disagree”) and something that the writer merely opines (“My reasons for recommending this are as follows:”). … I therefore submit that the hoary cliché “Teaching the student to write is teaching the student to think” sells the enterprise way short. Thinking isn’t even half of it.

Wallace seems to have nailed it, though he has perhaps sold his assessment short. This, it seems to me, is the trick not only to Freshman Composition, but to all effective writing. There’s more to it, of course – there’s organization, and at some point one moves from mere concerns about effectiveness to striving for some sort of euphony – but as a description of the basic struggle I find myself engaged in every time I sit down to write, it’s hard to do better. Viewed from that perspective, IRAC appears as the treatment of a symptom rather than the cause. Of course, that’s often all that one can reasonably do. To her great credit, Professor Slavin is struggling with the question of whether, and how, we might do more.

*This essay appears in the collection “Consider the Lobster.” The quoted material is at page 106. A shorter version, which does not include the quoted material, appeared in Harper’s as “Tense Present: Democracy, English, and the Wars over Usage.”

Democrats & Republicans Agree: (Big) Government is Good!

It is essential to keep in mind...that government doesn't only regulate people's lives. By providing the institutional conditions without which modern civilization and economic activity could not exist, government is substantially responsible for the kinds of lives that people can lead.---Liam Murphy and Thomas Nagel

At Balkinization, Jack Balkin convincingly argues that even the Republicans, crass ideological rhetoric to the contrary, are committed to "big government:"

Small government conservatism is an excellent slogan, but it corresponds neither to contemporary realities nor to the actual policies of either party. None of the Republican presidents since the New Deal have really limited the size of government; all have presided over its increase, and in some cases (Nixon and Bush), the growth of government has been quite remarkable. [....]

Despite the Republican rhetoric of small government, the actual Republican political hegemony of the past three decades has not really been directed to reducing the size of government. Rather, it has been about lowering taxes, especially taxes for large businesses, limiting government regulatory oversight, especially for large businesses, and increasing subsidies and government expenditures on subjects that Republicans have sought to subsidize, including, among other things, various business interests and the defense industries.

The Nixon Administration consolidated and expanded the Welfare State; the Reagan Administration ran enormous deficits; and the George W. Bush Administration converted a federal surplus into enormous deficits while creating new bureaucracies in education, health care, and Homeland Security and helping to construct the national surveillance state. While it was doing all this, it also expended about a trillion dollars on an ill-advised war in Iraq. Ironically, its particularly poor stewardship of big government has created an emergency that will probably lead to even more government.

You might think that an anti-tax and anti-regulatory philosophy necessarily means smaller government. But it does not, and indeed, the Bush Administration has shown us how to grow government while simultaneously reducing taxes and crippling regulatory oversight. [....]

So it would help if the Republicans opposed to the "stimulus" plan would overcome their collective self-deception and states of denial and concede once and for all the incontrovertible fact that "government is good!" The anti-tax rhetoric assumes, as Liam Murphy and Thomas Nagel remind us in The Myth of Ownership: Taxes and Justice (2002), that

pre-tax market outcomes are presumptively just, and that tax justice is a question of what justifies departures from that baseline, [a view that] appears to flow from an unreflective or 'everyday' libertarianism about property rights. Though a consistent application of sophisticated libertarian political theory leads to deeply implausible results that hardly anyone actually accepts, in its naive, everyday version, libertarianism is taken for granted in much tax policy analysis.

If we believed market outcomes were in fact presumptively just, we would not look to government "to provide welfare support to those of its subjects who are destitute, without access to food, shelter, or health care," in short, we would not subscribe to the animating rationale behind the Welfare State, nor would those in the affluent states of the northern hemisphere still be living and--globally and thus comparatively speaking--flourishing in "the real worlds of welfare capitalism."

"Everyday libertarianism" also unfairly trades on an untenable picture of the marketplace as set apart from "the government," ignoring the fact that

There is no market without government and no government without taxes; and what type of market there is depends on law and policy decisions that government must make. In the absence of a legal system supported by taxes, there couldn't be money, banks, corporations, stock exchanges, patents, or a modern market economy--none of the institutions that make possible the existence of almost all contemporary forms of income and wealth. (Murphy and Nagel: p. 32)

As Balkin notes above, the anti-regulatory rhetoric serves the narrow interests of casino capitalism and transnational corporations over and above public interests and the common good. And Murphy and Nagel pellucidly and patiently spell out the political virtue inscribed in the prescriptive admonition that "societal fairness, rather than tax fairness, should be the value that guides tax policy."

Professor of Politics at Mount Holyoke College, Douglas Amy, provides us with an unabashed and "unapologetic defense of [government as] a vital institution" at his website, Government is Good. And be sure to check out his laugh-out-loud satirical video, "Who Needs Big Government?"

However belatedly, with Marcus G. Raskin in The Common Good: Its Politics, Policies and Philosophy (1986), this is a propitious period in which to ask ourselves the following questions:

In a time when so many of us feel thrown, or alone and sinking, and in a time when our institutions and knowledge seem to reflect our problems rather than offer any cure or amelioration to them, is there any sense at all in talking about the common good for and among us? In an age of narcissism, selfishness and inattention, is there any value to proclaiming the need for a common good beyond class, or family or self--and trying to show how it just might be achieved?

In an age of deformed institutions and economic turbulence, is there any sense to reinvigorating our social and economic institutions, transforming them so that they will serve the economic, social and psychological dignity of all people? In an age of mass manipulation where politicians package themselves like commodities and where politics is synonymous with power, is there any value to concerning ourselves with a different, humane conception of politics and leadership? [....]

And in a time where people are told to hug old social structures, assert fundamentalist dogmas, and seek the repeal of social gains made by women, poor people, workers, since the French and American revolutions, should not people argue for more rather than less democracy, for more participation rather than trusteeship and oligarchy to protect and extend the gains of the past?

That "government is good" would seem to be an innocuous truism but alas that is not the case. All the same, "good governance" is a necessary but not sufficient condition of the "common good:"

The common good is not static; it shifts with our understanding and our discoveries of what is possible, of what humankind can positively create. In the day to day search for the common good those concerned with political action and those having to make conscious choices soon become aware that the common good is made up of contradictory and antagonistic elements. Often these antagonisms are between the new and the old. But no one should assume that the 'new' or the 'old' is a priori preferable over the other. In the age of modern science there is always a tendency to dismiss the old for the new. Indeed, the market system stimulates this tendency and there is enough that is rotten in tradition, or decaying in the old which justifies revolutionaries and capitalists alike in wanting to begin from scratch to erase history and its artifacts. But the reality is that the path of the common good encompasses the culture of the past, not in the sense that the people should be controlled by another time, but in the sense that the accomplishments and struggles of the past, of other generations, are not to be treated lightly. The accomplishments of others reflect the cumulative power and wisdom of civilization. (Raskin: p. 27)

Reflections on the Bombardment & Invasion of Gaza

We interrupt the schedule of planned posts to draw your attention to the latest issue of the London Review of Books (Vol. 31, No. 2 - 29 January 2009)---

In a post at the end of last year on the Israeli military assault on Gaza I wrote: "I am absolutely convinced that the mass media in this country is constitutionally unable to provide anything remotely resembling fair coverage of what is going on in Gaza...." We now have sufficient evidence for the truth of that claim courtesy of Henry Siegman in the latest issue of the London Review of Books:

Western governments and most of the Western media have accepted a number of Israeli claims justifying the military assault on Gaza: that Hamas consistently violated the six-month truce that Israel observed and then refused to extend it; that Israel therefore had no choice but to destroy Hamas’s capacity to launch missiles into Israeli towns; that Hamas is a terrorist organisation, part of a global jihadi network; and that Israel has acted not only in its own defence but on behalf of an international struggle by Western democracies against this network.

I am not aware of a single major American newspaper, radio station or TV channel whose coverage of the assault on Gaza questions this version of events. Criticism of Israel’s actions, if any...has focused instead on whether the IDF’s carnage is proportional to the threat it sought to counter, and whether it is taking adequate measures to prevent civilian casualties.

Middle East peacemaking has been smothered in deceptive euphemisms, so let me state bluntly that each of these claims is a lie. [....] [emphasis added]

Read the article by Siegman for the specific reasons as to why each of the aforementioned Israeli claims is not true. And then read, on the LRB website, "Responses to the War in Gaza" by Tariq Ali, David Bromwich, Alastair Crooke, Conor Gearty, Eric Hobsbawm, R.W. Johnson, Rashid Khalidi, Yitzhak Laor, Yonatan Mendel, John Mearsheimer, Ilan Pappe, Gabriel Piterberg, Jacqueline Rose, Eliot Weinberger, and Michael Wood.

Hamas

"We have seen how other nations , including the peoples of Vietnam and South Africa, persisted in their struggle until their quest for freedom and justice was accomplished. We are no different, our determination is no less profound, and our patience is no less abundant."
---Khaled Meshaal

Today's Los Angeles Times has an opinion piece by Fawaz Gerges that hits all the right points when it comes to understanding the role of Hamas in the Israeli-Palestinian conflict and what strategy outside parties might pursue should they truly want to facilitate the realization of the right to Palestinian self-determination:

Now that the guns have fallen silent and the dust is settling over Gaza, it is time to revisit the received wisdom in Israel, the United States and some European quarters that Hamas is a monolithic, Al Qaeda-like terrorist organization bent on Israel's destruction and that, therefore, Israel has no choice but to isolate Hamas and use overwhelming force to overcome it.

In fact, there is substantial evidence to the contrary. Far from a monolith, there are multiple clashing viewpoints and narratives within Hamas. Over the years, I have interviewed more than a dozen Hamas leaders inside and outside the Palestinian territories. Although, on the whole, Hamas' public rhetoric calls for the liberation of all historic Palestine, not only the territories occupied in 1967, a healthier debate occurs within.

Nuanced differences exist among Hamas' leaders, some of whom have repeatedly said they wanted a two-state solution.

In the last year, more and more Hamas moderates have called for tahdia (a minor truce) or hudna (a longer-term truce), which obviously implies some measure of recognition. Hamas moderates, in effect, are justifying their policy shift by using Islamic terms. In Islamic history, hudnas sometimes develop into permanent truces.

Considered a hard-liner, Khaled Meshaal, the top Hamas leader and head of its political bureau based in Syria, acknowledged as much. "We are realists," he said. And he acknowledged that there is "an entity called Israel."

Another senior Hamas leader, Ghazi Hamad, went even further than Meshaal, telling journalists last month that Hamas would be satisfied with ending Israeli control over the areas occupied in the 1967 Six-Day War -- the West Bank, Gaza and East Jerusalem. In other words, the organization would not hold out for the liberation of the land that currently includes Israel.

My conversations with Hamas' rank and file suggest that the militant organization has evolved considerably since the group unexpectedly won power in Gaza in free elections in 2006. Before that, Hamas was known for its suicide bombers, not its bureaucrats. But that had to change. "It is much more difficult to run a government than to oppose and resist Israeli occupation," a senior Hamas leader told me while on official business in Egypt in 2007. "If we do not provide the goods to our people, they'll disown us."

Despite its wooden and reactionary rhetoric, Hamas is a rational actor, a conclusion reached by former Mossad chief Ephraim Halevy, who also served as Ariel Sharon's national security advisor and who is certainly not an Israeli peacenik. The Hamas leadership has undergone a transformation "right under our very noses" by recognizing that "its ideological goal is not attainable and will not be in the foreseeable future," Halevy wrote recently in Yedioth Ahronoth. His verdict is that Hamas is now ready and willing to accept the establishment of a Palestinian state within the temporary borders of 1967.

Similarly, a U.S. Army Strategic Studies Institute analysis published just weeks before the launch of the Israeli offensive concluded that Hamas was considering a shift of its position. "Israel's stance toward [Hamas] ... has been a major obstacle to substantive peacemaking," concluded the study.

If Hamas is so eager to accept a two-state solution, why doesn't it simply announce that it recognizes Israel's existence and promise to negotiate a peace deal that allows the two countries to coexist? Apparently, Hamas' leaders believe that accepting Israel's presence is the last card in their arsenal. Why bargain it away before the talks even start? [....]

So far, the strategy of isolating and militarily confronting Hamas pursued by Israel and the Bush administration has not appeared to weaken the organization dramatically; if anything, it has strengthened hard-liners within and reinforced the culture of extremism and martyrdom.

There is no doubt that Hamas' reckless rocketing of populated Israeli towns, as well as its overheated rhetoric, have allowed Israeli leaders to portray their assault on Gaza as an extension of the global war on terrorism. But there are huge differences between Hamas and Al Qaeda, and a lot of bad blood. Hamas is a broad-based religious/nationalist resistance whose focus and violence is limited to Palestine/Israel, while Al Qaeda is a small, transnational terrorist group that has carried out attacks worldwide. Osama bin Laden and Ayman Zawahiri, Al Qaeda's chiefs, have vehemently criticized Hamas for its willingness to play politics and negotiate a truce with Israel. Hamas' leaders have responded that they know what is good for their people.

Unlike Al Qaeda, Hamas is not merely an armed militia but a viable social movement with an extensive social network and a large popular base that has been estimated at more than half a million supporters and sympathizers.

If it won't engage Hamas, the U.S. and Europe will never know if it can evolve into an open, tolerant and peaceful social movement. But most important, there can be no durable resolution of the 100-year-old conflict if Hamas is not consulted about peacemaking and if the Palestinians remain divided. Like it or hate it, Hamas is the most powerful organization in the Palestinian territories; it is deeply entrenched in society. Israel cannot wish it away.

To break the deadly embrace, the new U.S. administration and its European allies should support a unified Palestinian government that could negotiate peace with Israel. Some of Obama's advisors are on record saying that they favor dialogue with organizations such as Hamas, Hezbollah and the Muslim Brotherhood. Some even believe that the president may feel the same way, though he has not said so. If they are wrong, and Obama thinks that a "durable peace" can be achieved without talking to Hamas, he will be in for a rude awakening.

Having planned several in-depth posts on Hamas and terrorism, this essay's timing is fortuitous and thus will now serve as our introduction. Stay tuned.

Recommended Reading: Vermeule's Mechanisms of Democracy (2007)

Back in July of 2007 Professor Lawrence Solum informed us of Adrian Vermeule's Mechanisms of Democracy: Institutional Design Writ Small (for an example of the genre that treats 'institutional design writ large,' see Russell Hardin's Liberalism, Constitutionalism, and Democracy, 1999) through the valuable service provided by his weekly Legal Theory Bookworm. At the time, Solum wrote, "Once again, Vermeule is original and illuminating. It is one of those rare books that changes the angle from which we view familiar issues." Of course anyone interested in legal theory and philosophy of law takes notice of what Solum has to say on his blog, but it's taken me some time to get around to reading Vermeule's book. And in my case, the issues dealt with were not that familiar, although I agree with the judgment that Vermeule is "original and illuminating." Any work that comes with enthusiastic recommendations (as jacket blurbs) from Cass Sunstein and Robert E. Goodin will suffice for this reader and this book does not disappoint. With Solum, we quote from the book's description:

What institutional arrangements should a well-functioning constitutional democracy have?

Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. In this book, Adrian Vermeule moves beyond these debates, changing the focus to institutional design writ small.

In established constitutional polities, Vermeule argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly. Drawing upon a range of social science tools from economics, political science, and other disciplines, Vermeule carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.

Vermeule both describes and proposes various sorts of rules and mechanisms that advance what he terms ('thin conceptions of') four core values of democractic constitutionalism: impartiality, accountability, transparency, and deliberation. For instance, with regard to a thin conception of impartiality, "veil rules" "dampen both information and bias, including bias arising from self-interest, at the same time, however, they also suppress decisionmakers' activity or energy." A straightforward illustration involves

a rule that requires an official with regulatory authority over the stock market to place her assets in a 'blind trust.' Even if the official is self-interested, she will be uncertain whether any given decision will increase or decrease the value of her portfolio. She will thus be unable to skew her decisions in order to promote her personal interests.

A "veil rule" brings home the truth of the proposition that "more information is not always better than less," in this case, by suppressing the particular bias that may arise from self-interest. (We won't here discuss the manner in which such a rule may 'suppress a decisionmaker's activity or energy.') The general point is enshrined in the hope that

Behind the veil...the decisionmaker afflicted with uncertainty will, for lack of ex post information about whose interests to favor, choose the option or rule that promotes the good of all those affected in an ex ante sense. The dearth of information produces decisions that track the output of an impartially motivated decisionmaker.

In fact, there is considerable value in subjecting decisionmakers to an "uncertainty constraint" that relies on withholding particular kinds of information. While we can't here do justice to the quality of Vermeule's analysis or the richness of his examples, particularly illuminating is the treatment of the "nondelegation doctrine" which, although largely unenforced since 1935 according to Vermeule, "persists as a principle of statutory interpretation." Rightly and forcefully I think, he argues that "the nondelegation principle has no appeal as a matter of democratic theory; it is irrelevant to accountability, or accountability is irrelevant to it." For the "core claim of nondelegation proponents," namely,

that delegation dilutes accountability, and is therefore nondemocratic--fails on two grounds: the executive also has democratic credentials, and legislators can be held fully accountable for the decision to delegate. The first point is that executive delegates are also accountable. In parliamentary systems with an executive who is elected by the elected legislators themselves, the executive is doubly accountable, both to the parliamentary majority or coalition, and to the voters in the executive's constituency. In systems with an independently elected executive, agencies are accountable to the President, who is more or less accountable to the voters--more anyway than the courts who are supposed to enforce the nondelegation doctrine.

Vermeule reminds American critics of delegation that the Presidency too has democratic credentials, and he is adamant that "all legislative lawmaking, direct or indirect, is on the same footing; delegation is not special."

Also rather intriguing is the pellucid discussion of "submajority rules" under which a voting minority is granted the affirmative power to change the status quo. Vermeule outlines "the important procedural and epistemic virtues" of rules that are, surprisingly (to me at any rate), "found in a range of legislatures, courts, international bodies, and other democratic institutions." A submajority rule is defined as a voting rule

that authorizes (i) a predefined numerical minority within a designated voting group (ii) to change the status quo (not merely to prevent change) (iii) regardless of the distribution of other votes.

In procedural terms, such rules can be counted among those "devices that empower minorities to force public accountability and transparency on the majority." With Jon Elster, we might describe the use of such rules as providing us with yet another example of man "as a globally maximizing machine," a characterization he traces back to Leibniz (in Elster's Ulysses and the Sirens: studies in rationality and irrationality, 1984 ed.): "Investment is perhaps the simplest example of global maximization that requires bypassing a local maximum: one step backwards in order to take two steps forward." In the instant case, what is prima facie anti-democratic (i.e., a step backwards) is, in the end, democracy enhancing: "Although the immediate valence of the rules is dramatically countermajoritarian, their downstream effects [i.e., two steps forward] may be justified in majoritarian terms." Perhaps the best know of such rules is the "famous 'Rule of Four' that allows four Justices to grant a writ of certiorari and thereby put a case on the Supreme Court's agenda."

Finally, and to return to the discussion of the nondelegation doctrine, Vermeule notes that

In a world without a nondelegation doctrine, the role of judges is to enforce congressional instructions, including instructions to delegate. The principal rule the American legal system uses to implement this scheme is the so-called Chevron doctrine, after an all-important Supreme Court decision in 1984.* Under Chevron, judges are to enforce clear congressional instructions, but where statutes are unclear or silent, judges presume that Congress has delegated policymaking authority to the executive.

Unfortunately, and despite the best intentions, Chevron has not proven efficient or very adept at promoting democratic accountability:

Chevron fares poorly because it attempts to allocate policymaking authority through soft-edged legal doctrine, making it vulnerable to a range of problems: conceptual imprecision, cognitive burdens that afflict boundedly rational judges, and manipulation on the part of biased judges.

Vermeule proposes a voting rule over the current doctrinal solution to "what is, after all, an institutional problem: the allocation of interpretive authority between agencies and courts when congressional instructions are silent or ambiguous." Specifically, Chevron could instead be implemented through voting rules:

A supermajority voting rule for multimember panels could state that on the nine-member Supreme Court, agencies will win against any claim that they have exceeded the bounds of their delegated authority, unless six Justices vote against the agency. [....] The basic idea...is to find voting mechanisms that implement Chevron's own goals of accountability at lower cost. In so doing, the hope is that small-scale changes in the design of judicial voting rules can produce large improvements in the system of democratic lawmaking.

*For recent articles with important discussions of Chevron, see William N. Eskridge, Jr. and Lauren E. Baer, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," The Georgetown Law Journal, Vol. 96 (2008): 1083-1226, and Lisa Schultz Bressman, "Chevron's Mistake," Duke Law Journal, Vol. 58, No. 4 (January 2009): 549-621.

The WTO, Core ILO Labor Standards, & Human Rights

The continuing dialogue between organised labour, the WTO and some member states indicates two things. Firstly, labour issues remain on the agenda. Their 'solution' may lie at the WTO or in a revitalised ILO or in unilateral action in developed economies. Whatever the case, the concerns of labour will not simply disappear. Secondly, there is an increasing recognition that future liberalisation and the stability of the international trading system is partially linked to the degree to which such institutions and initiatives can accommodate social concerns. The fiction of trade agreements being the preserve of states has given way to a grudging consideration of their roots in civil society.---Robert O'Brien, et al., Contesting Global Governance... (2000): 108.

At Opinio Juris, perhaps the premier blog for international law and politics among a fast-growing blogroll in the field, Roger Alford has a post that explains to us how the rules of the World Trade Organization (WTO) perversely express de jure and de facto preference for environmental protection over the protection of basic human rights. The WTO is one of the three so-called Bretton Woods Institutions, the other two being the International Monetary Fund (IMF, or 'the Fund') and the World Bank* (i.e., the World Bank Group, or 'the Bank;' it should be noted that more often than not what is referred to here is the International Bank for Reconstruction and Development [IRBD], which is but one member of the group collectively called 'the Bank'). Alford explains precisely why the environment is accorded more legal protection, with concrete policy consequences and implications, than the protection of basic human rights, in particular, those expressed in the core labor standards established by the International Labour Organisation (ILO):

1. Freedom of association and right to collective bargaining
2. Elimination of all forms of forced or compulsory labour
3. Effective abolition of child labour
4. Elimination of discrimination in employment and occupation

Before looking at Alford's precise explanation, some background history and information are in order. The ILO is one of the international organizations that helped inspire the controversial but increasingly important (if only because of the current global economic crisis) International Covenant on Economic, Social and Cultural Rights (ICESCR), which itself must be examined in light of its similarities and differences with the International Covenant on Civil and Political Rights ICCPR) (something we can't do here but see Ch. 4, 'Economic and Social Rights,' in Steiner and Alston below in References and Further Reading):

The historical recognition of economic and social rights are diffuse. Those rights have drawn strength from the injunctions expressed in different religious traditions to care for those in need and those who cannot look after themselves. In Catholicism, papal encyclicals have long promoted the importance of the right to subsistence with dignity, while 'liberation theology' has sought to build upon this 'preferential option for the poor.' Virtually all of the major religions manifest comparable concern for the poor and oppressed. Other sources include philosophical analyses and political theory from authors as diverse as Thomas Paine, Karl Marx, Immanuel Kant and John Rawls; the political programmes of the nineteenth century Fabian socialists in Britain, Chancellor Bismarck in Germany (who introduced social insurance schemes in the 1880s), and the New Dealers in the United States; the first and subsequent Soviet constitutions, and the 1919 Constitution of the Weimar Republic (embodying the Wohlfahrtsstaat concept).

The most appropriate starting point [for tracing the 'evolution of these ideas in international human rights law'] is the International Labour Organisation (ILO). Established by the Treaty of Versailles in 1919 to abolish the 'injustice, hardship and privation' which workers suffered and to guarantee 'fair and humane conditions of labour,' it was conceived as the response of Western countries to the ideologies of Bolshevism and Socialism arising out of the Russian Revolution. In the inter-war years, the ILO adopted international minimum standards in relation to a wide range of matters which now fall under the rubric of economic and social rights. They include, inter alia, conventions dealing with freedom of association and the right to organize trade unions, forced labour, minimum working age, hours of work, weekly rest, sickness protection, accident insurance, invalidity and old-age insurance, and freedom from discrimination in employment. The Great Depression of the early 1930s emphasized the need for social protection of those who were unemployed and gave a strong impetus to full employment policies such as those advocated by Keynes in his General Theory of Employment, Interest and Money (1936). (Steiner and Alston: 242)



Now let's take a somewhat cursory look at US trade policy and the promotion of labor rights, relying on a summary provided by Bob Hepple in Labour Laws and Global Trade (2005):

Since the 1980s the promotion of labour rights in developing countries has become an increasingly important part of US trade policy. This is the result of pressure from labour and human rights activists in the US and marks a shift from the older purely protectionist campaigns of US unions to 'stop imports' or 'buy American.' The spate of legislation designed to protect the rights of workers in foreign countries has been characterized by some critics as 'aggressive unilateralism,' 'global bullying,' and disguised protectionism.

The first major legislative achievement of the pressure groups was a labour rights amendment to the US Generalised System of Preferences (GSP) adopted by Congress and signed by President Reagan in 1984. The GSP, as originally enacted by Title V of the Trade Act 1974, aims to provide the developing countries 'fair and reasonable access' into the US for specified products. Under it, more than 3000 products from more than 145 developing countries have duty-free access to US markets. The GSP has been renewed on several occasions most recently 31 December 2006. The labour rights provision prohibits access to US markets to any country 'that is not taking steps to afford internationally recognised worker rights to its workers (including those in export processing zones).' The labour clause in the GSP was followed by a series of other measures which make trade and investment conditional upon observance of labour rights. [....]

Hepple proceeds to outline a number of both positive and negative effects of the GSP and subsequent measures on labor rights. But more to the point for our purposes here, he informs us that

...[C]ritics have argued that unilateralism is a fundamentally flawed approach for three principal reasons: first, it undermines the rule of international law by the use or threat of sanctions against a country for failing to adopt international standards which it has not accepted and do not form part of customary international law; secondly, the processes are ineffective; thirdly, the motivation for unilateral measures is primarily protectionist and political; and finally, there exist suitable alternatives.

The US GSP legislation does not use the ILO concept of 'core labour standards.' Instead, it [i.e., the legislation] applies to 'internationally recognised worker rights.' This concept is used either expressly or by reference to virtually all the US legislative measures. The first four of these rights correspond almost exactly to those in the 1998 ILO Declaration, but the right against all forms of discrimination, which features in the ILO Declaration, is excluded. This important omission was the result of a political compromise on the labour rights amendment in 1984. The Reagan administration successfully resisted the proposal to include discrimination because of their fear of antagonising oil-producing states which practise discrimination against women and non-Muslims, and in order to protect Israel which was accused of discrimination against Palestinian workers. The Administration also insisted on softening language in the original draft which required the mandatory suspension of those who violated rights, so as to make it sufficient for a country to be 'taking steps' to achieve these rights. This was designed to give the Administration maximum discretion in furthering the foreign policy interests of the US. The definition does include 'acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health,' which are not 'core' ILO standards. But the language leaves a wide discretion for the Administration to decide what is 'acceptable.'

[In addition], critics point out that the US is demanding standards of others that it has not accepted as part of its own international obligations. The US has ratified only 14 ILO conventions (2 no longer in force). These include those on forced labour (C.105) and the worst forms of child labour (C.182), but not any of the other 'core' ILO conventions, nor those relating to wages, hours of work or occupational safety and health (with the exception of safety and health in mines [C.105]). Moreover, many of the standards demanded have not yet been accepted by the countries on which US practice imposes them. Nor can the US claim to be enforcing customary international law. ...[I]t is unlikely that any of the ILO conventions apart from those relating to slave and forced labour can be said to be part of customary international law.

Moreover, the interpretations of 'internationally recognised worker rights' are not consistent with the interpretations made by the ILO supervisory bodies. [....] The result of these idiosyncratic interpretations is that attempts to create a consistent set of international labour standards is frustrated.

That said, we can better objectively appreciate Alford's post:

The general exceptions of the WTO provide for various exceptions to the core rules against non-discrimination, quotas, import bans and the like. But not all the exceptions are the same, and WTO jurisprudence has devolved to the absurd point that the environment is more important than human rights.

One of the exceptions, Article XX(g), provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “relating to the conservation of exhaustible natural resources….” This means that any measure that relates to a legitimate policy of conserving natural resources can invoke Article XX(g) and be exempt from WTO obligations. Thus, the United States could restrict the importation of products that cause air pollution, threaten global warming, or diminish the population of endangered species. Of course, it must implement these measures in a non-discriminatory manner and must impose similar obligations on domestic products. But subject to these limitations, any measure that relates to conservation of exhaustible natural resources is acceptable.

Not so with human rights. Article XX(b) provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “necessary to protect human … life or health….” The requirement that the measure be “necessary” rather than “relate to” has been interpreted to impose an extremely high hurdle for Member States seeking to promote concerns such as human rights. Essentially, for a measure to be “necessary” a Member State must show that (1) no measures consistent with the WTO could have been employed; and (2) no less trade restrictive measures inconsistent with the WTO could have been employed. In other words, when it comes to human rights, alternative measures that are not trade distorting must first be employed.

Permit me a few reflections on Professor Alford's important conclusion that, for example, according to WTO rules, "you can ban the importation of tuna if it harms dolphins, but not because the fishermen who caught the tuna were employed in a manner inconsistent with core ILO labor standards."

One of the reasons perhaps for the comparative weakness of the Article XX(b) has to do with the pernicious influence of economists on the WTO for, as Sean Turnell reminds us in his paper, “Core Labour Standards and the WTO,” “Using the WTO as the body to police core labour standards is generally opposed by economists.” In this case, it might be fair to say criteria derived from the neo-classical conception of welfare economics trumps fairness criteria generally (as in Kaplow and Shavell’s Fairness versus Welfare, 2002; see Kimberly Ferzan’s excellent review of their book here; see too S.M. Amadae's Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism, 2003).

One of several reasons why the failure to meaningfully implement core ILO standards is disturbing is owing to the fact that ”selective regulation of trade and labour...opens the theoretical door to a prisoners’ dilemma in labour standards and the potential for a ‘race to the bottom.’” Turnell notes that in their book, The International Regulation of Trade (1999 ed.), Trebilcock and Howse argued for a “‘dynamic’ interpretation of Article XX that recognises ‘the evolution of human rights as a core element in public morality [XX(a)] in many post-war societies and at the international level.’ Accordingly, in their analysis, ‘public morals’ in the context of Article XX,’ should extend to universal human rights, including labour rights.’ Under Article XX, enforcement of core labour standards could operate through a number of measures, including (at last resort) the withdrawal of WTO right and obligations.” Ironically, it was a ruling concerning environmental issues, namely the Shrimp/Turtle case, that may serve as precedent for the incorporation of core labor standards, for when the US lost WTO ruling on appeal, it was held that

The appeal was lost on the basis that the US had used restrictive measures that constituted ‘arbitrary and unjustifiable discrimination between members of the WTO, contrary to the requirements of the chapeau of Article XX’ (emphasis added). Significantly, however, the Appellate Body of the WTO found that the environmental objective of the US was legitimate under Article XX. In short, the problem in this case was unjustifiable discrimination, not the use of Article XX in protecting objectives that the WTO allowed as exceptions to its agreements. If an obvious precedent for the core labour standards campaign is created in the ‘Turtles Case,’ so too is the potential role of the ILO in ensuring justifiable discrimination.

But Professor Alford has well-explained for us precisely why Shrimp/Turtle will not likely serve as "an obvious precedent for the core labour standards campaign."

Under "References and Further Reading" I list some material that can help us think deeper about the question of linkage between human rights** generally, ILO labour standards, and the WTO. In my admittedly amateur assessment of the literature I've read (which is far from exhaustive or systematic), the most provocative work I've encountered is by Ernst-Ulrich Petersmann. First, there's his contribution, "Bridging Foundations: Human Rights and International Trade Law," in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi, eds., Human Rights and International Trade (2005): 29-94. Then, there's his recent article, "Human Rights, International Economic Law and 'Constitutional Justice,'" in the European Journal of International Law, (2008) Vol. 19, No. 4: 769-798, as well as his response to what seem (to me at any rate) to be rather uncharitable if not churlish critics. I’m quite intrigued by Petersmann’s work and a bit mystified as to why some otherwise very intelligent scholars in the field seem unable to comprehend it within the letter if not the spirit of the Principle of Charity. Perhaps there’s some sub-textual or background academic squabble I’m not privy to.

By way of a taste of Petersmann's highly original and sophisticated argument(s), the following are the "three normative premises on which all [of his] arguments are based...:"

First, the today universal recognition--not only in the Preambles of all UN human rights conventions but also in regional and many national human rights instruments and state practices--of 'the inherent dignity and of the equal and inalienable rights of all members of the human family (as) the foundation of freedom, justice and peace in the world' justifies the claim that respect for human dignity and liberty has become the ius cogens core of 'inalienable human rights' limiting all governance powers at national and intergovernmental levels.

Secondly, human life in dignity, liberty, and social responsibility requires legal protection for individual freedom to participate in markets (e.g., as dialogues about values, decentralized information, coordination and discovery mechanisms) and to exchange the fruits of one's labour for scarce goods and services needed for personal self-development. Specialization (e.g., in families, societies) and exchange are among the most basic human activities. While some markets have a 'price' rather than 'dignity,' others are of existential importance for individual, social, and democratic self-development. Human rights cannot be effectively protected without due regard to the economic insight that personal freedom is not only a fundamental moral and constitutional principle, but also the most important instrument for satisfying human needs.

Thirdly, even though constitutional contracts for the collective supply of public goods may legitimately differ among rational citizens due to different value preferences and historical experiences (cf. the diversity of agreed, specific human rights guarantees), respect for human dignity requires treating individuals as legal subjects and 'market citizens' (e.g., respect for 'indivisible' individual liberty to decide which equal freedoms an individual values most). As explained by Immanuel Kant more than 200 years ago, the moral imperative requiring legal protection of maximum equal freedom and democratic peace cannot be realized without complementary national, international, and cosmopolitan guanrantees.

* Please see the BIC (Bank Information Center), which "partners with civil society in developing and transition countries to influence the World Bank and other international financial institutions to promote social and economic justice and ecological sustainability."

**See the many links available at the Business and Human Rights Resource Centre.

References and Further Reading:

• Aaronson, Susan Ariel and Jamie M. Zimmerman. Trade Imbalance: The Struggle to Weigh Human Rights Concerns in Trade Policymaking. Cambridge, UK: Cambridge University Press, 2007.
• Alston, Philip, ed. Labour Rights as Human Rights. New York: Oxford University Press, 2005.
• Alston, Philip, and Mary Robinson, eds. Human Rights and Development: Toward Mutual Reinforcement. New York: Oxford University Press, 2005.
• Barry, Christian and Sanjay G. Reddy, "Just Linkage: International Trade and Just Labor Standards," August 25, 2005. Available: http://organizations.lawschool.cornell.edu/ilj/symposium/papers/just_linkage.pdf
• Basu, Kaushik, et al., eds. International Labor Standards: History, Theory and Policy Options. Malden, MA: Blackwell, 2003.
• Bossche, Peter van den. The Law of the World Trade Organization: Text, Cases and Materials. Cambridge, UK: Cambridge University Press, 2nd ed., 2008.
• Caney, Simon. Justice Beyond Borders: A Global Political Theory. New York: Oxford University Press, 2005.
• Compa, Lance A. and Stephen F. Diamond, eds. Human Rights, Labor Rights, and International Trade. Philadelphia, PA: University of Pennsylvania Press, 2003.
• Cottier, Thomas, Joost Pauwelyn, and Elisabeth Burgi, eds. Human Rights and International Trade. New York: Oxford University Press, 2005.
• Darrow, Mac. Between Light and Shadow: The World Bank, the International Monetary Fund, and International Human Rights Law. Oxford, UK: Hart, 2003.
• Dasgupta, Partha. An Inquiry into Well-Being and Destitution. New York: Oxford University Press, 1993.
• De Greiff, Pablo and Ciaran Cronin, eds. Global Justice and Transnational Politics. Cambridge, MA: MIT Press, 2002.
• Donnelly, Jack. Universal Human Rights in Theory & Practice. Ithaca, NY: Cornell University Press, 2nd ed., 2003.
• Elson, Diane. "Market Socialism or Socialization of the Market? New Left Review, No. 172 (November/December 1988): 3-44.
• Elster, Jon and Karl Ove Moene, eds. Alternatives to Capitalism. Cambridge, UK: Cambridge University Press, 1989.
• Flanagan, Robert J. Globalization and Labor Conditions: Working Conditions and Worker Rights in a Global Economy. New York: Oxford University Press, 3rd ed., 2006.
• Forsythe, David P. Human Rights in International Relations. Cambridge, UK: Cambridge University Press, 2000.
• Garcia, Frank J. Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade. Ardsley, NY: Transnational, 2003.
• Garcia, Frank J. "Global Justice and the Bretton Woods Institutions," Journal of International Economic Law 10, No. 3 (September 2007): 461-481.
• Gross, James A., ed. Workers’ Rights as Human Rights. Ithaca, NY: Cornell University Press, 2003.
• Harrison, James. The Human Rights Impact of the World Trade Organisation. Oxford, UK: Hart, 2007.
• Harrod, Jeffrey and Robert O'Brien, eds. Global Unions? Theory and Strategies of Organized Labour in the Global Political Economy. New York: Routledge, 2002.
• Harvey, David. A Brief History of Neoliberalism. New York: Oxford University Press, 2005.
• Hausman, Daniel M. and Michael S. McPherson. Economic Analysis, Moral Philosophy, and Public Policy. Cambridge, UK: Cambridge University Press, 2nd ed., 2006.
• Heintz, James. "Global Labor Standards: Their Impact and Implementation" (2002) PERI Working Paper No. 46. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=353365
• Hepple, Bob. Labour Laws and Global Trade. Oxford, UK and Portland, OR: Hart, 2005.
• Hestermeyer, Holger P. Human Rights and the WTO: The Case of Patents and Access to Medicines. New York: Oxford University Press, 2007.
• Hockett, Robert. "Three (Potential) Pillars of Transnational Economic Justice: The Bretton Woods Institutions as Guarantors of Global Equal Treatment and Market Completion," in Christian Barry and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice. Malden, MA: Blackwell, 2005: 90-123.
• Howse, Robert and Ruti G. Teitel. "Beyond the Divide: The Covenant on Economic, Social and Cultural Rights and the World Trade Organization," (April 2007), Dialogue on Globalization, Occasional Paper, Geneva: Friedrich-Ebert-Stiftung. Available: http://library.fes.de/pdf-files/iez/global/04572.pdf
• Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge, UK: Cambridge University Press, 2000.
• O'Brien, Robert, Anne Marie Goetz, Jan Aaart Scholte and Marc Williams. Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements. Cambridge, UK: Cambridge University Press, 2000.
• Patterson, Dennis and Ari Afilalo. The New Global Trading Order: The Evolving State and the Future of Trade. Cambridge, UK: Cambridge University Press, 2008.
• Pollin, Robert. "Financial Structures and Egalitarian Economic Policy," PERI, University of Massachusetts, Amherst. Working Paper Series No. 182 (December 1995). New Left Review I/214 (November-December 1995). Available: http://www.peri.umass.edu/fileadmin/pdf/working_papers/working_papers_151-200/WP182.pdf
• Raz, Joseph. The Morality of Freedom. New York: Oxford University Press, 1986.
• Robinson, William I. A Theory of Global Capitalism: Production, Class, and State in a Transnational World. Baltimore, MD: Johns Hopkins University Press, 2004.
• Rubin, Neville, Evance Kalula and Bob Hepple, eds. Code of International Labour Law, 2 Vols. Cambridge, UK: Cambridge University Press, 2005.
• Saad-Filho, Alfredo and Deborah Johnson, eds. Neoliberalism: A Critical Reader. London: Pluto Press, 2005.
• Santos, Boaventura de Sousa and Cesar A. Rodriguez-Garavito, eds. Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge, UK: Cambridge University Press, 2005.
• Schweickart, David. Against Capitalism. Boulder, CO: Westview Press, 1996.
• Sen, Amartya. Development as Freedom. New York: Alfred A. Knopf, 1999.
• Shaikh, Anwar, ed. Globalization and the Myths of Free Trade: History, Theory, and Empirical Evidence. New York: Routledge, 2007.
• Steiner, Henry J. and Philip Alston, eds. International Human Rights in Context: Law, Politics, Morals (Texts and Materials). New York: Oxford University Press, 2nd ed., 2000.
• Unger, Roberto Mangabeira. Free Trade Reimagined: The World Division of Labor and the Method of Economics. Princeton, NJ: Princeton University Press, 2007.
• United States--Import Prohibitions on Certain Shrimp and Shrimp Products, WTO Appellate Body Report, WT/DS58/AB/RW, 22 October 2001 (Shrimp/Turtle II).
• Wright, Erik Olin, et al., The Debate on Classes. London: Verso, 1989.
  

Update: Professor Steven Schwinn of the Constitutional Law Prof Blog has kindly informed me of a title that looks like an intriguing if not important addition to the above list: Raj Bhala's Trade, Development and Social Justice. Durham, NC: Carolina Academic Press, 2003.

Uri Avnery: War in Gaza & Israeli-Arab Peace

Uri Avnery is an Israeli writer and peace activist who founded the Gush Shalom movement. He has served three terms as an MP at the Knesset. More biographical imformation about him is available below in his "memo" to the President-Elect, Barack Obama, first published in the Jewish periodical Tikkun ('a bimonthly critique of politics, culture and society' that describes itself as 'the pre-eminent North American publisher of analytical articles on Israel/Palestine, Jewish culture, and the intersection of religion and politics in the United States'). The first piece is on the invasion of Gaza, the second is the aforementioned letter to the President-elect.

How Many Divisions?

Hamas is deeply rooted in the population – not only as a resistance movement fighting the foreign occupier – but also as a political and religious body that provides social, educational and medical services, notes Uri Avnery.

Nearly seventy years ago, in the course of World War II, a heinous crime was committed in the city of Leningrad. For more than a thousand days, a gang of extremists called “the Red Army” held the millions of the town’s inhabitants hostage and provoked retaliation from the German Wehrmacht from inside the population centers. The Germans had no alternative but to bomb and shell the population and to impose a total blockade, which caused the death of hundreds of thousands.

This the description that would now appear in the history books – if the Germans had won the war.

Absurd? No more than the daily descriptions in our media, which are being repeated ad nauseam: the Hamas terrorists use the inhabitants of Gaza as “hostages” and exploit the women and children as “human shields”, they leave us no alternative but to carry out massive bombardments, in which, to our deep sorrow, thousands of women, children and unarmed men are killed and injured.

In this war, as in any modern war, propaganda plays a major role. The disparity between the forces, between the Israeli army - with its airplanes, gunships, drones, warships, artillery and tanks - and the few thousand lightly armed Hamas fighters, is one to a thousand, perhaps one to a million. In the political arena the gap between them is even wider. But in the propaganda war, the gap is almost infinite.

Almost all the Western media initially repeated the official Israeli propaganda line. They almost entirely ignored the Palestinian side of the story, not to mention the daily demonstrations of the Israeli peace camp. The rationale of the Israeli government (“The state must defend its citizens against the Qassam rockets”) has been accepted as the whole truth. The view from the other side, that the Qassams are a retaliation for the siege that starves the one and a half million inhabitants of the Gaza Strip, was not mentioned at all.

Only when the horrible scenes from Gaza started to appear on Western TV screens, did world public opinion gradually begin to change.

True, Western and Israeli TV channels showed only a tiny fraction of the dreadful events that appear 24 hours every day on Aljazeera’s Arabic channel, but one picture of a dead baby in the arms of its terrified father is more powerful than a thousand elegantly constructed sentences from the Israeli army spokesman. And that is what is decisive, in the end.

War – every war – is the realm of lies. Whether called propaganda or psychological warfare, everybody accepts that it is right to lie for one’s country. Anyone who speaks the truth runs the risk of being branded a traitor.

The trouble is that propaganda is most convincing for the propagandist himself. And after you convince yourself that a lie is the truth and falsification reality, you can no longer make rational decisions.

An example of this process surrounds the most shocking atrocity of this war so far: the shelling of the UN Fakhura school in Jabaliya refugee camp.

Immediately after the incident became known throughout the world, the army “revealed” that Hamas fighters had been firing mortars from near the school entrance. As proof they released an aerial photo which indeed showed the school and the mortar. But within a short time the official army liar had to admit that the photo was more than a year old. In brief: a falsification.

Later the official liar claimed that “our soldiers were shot at from inside the school”. Barely a day passed before the army had to admit to UN personnel that that was a lie, too. Nobody had shot from inside the school, no Hamas fighters were inside the school, which was full of terrified refugees.

But the admission made hardly any difference anymore. By that time, the Israeli public was completely convinced that “they shot from inside the school”, and TV announcers stated this as a simple fact.

So it went with the other atrocities. Every baby metamorphosed, in the act of dying, into a Hamas terrorist. Every bombed mosque instantly became a Hamas base, every apartment building an arms cache, every school a terror command post, every civilian government building a “symbol of Hamas rule”. Thus the Israeli army retained its purity as the “most moral army in the world”.

The truth is that the atrocities are a direct result of the war plan. This reflects the personality of Ehud Barak – a man whose way of thinking and actions are clear evidence of what is called “moral insanity”, a sociopathic disorder.

The real aim (apart from gaining seats in the coming elections) is to terminate the rule of Hamas in the Gaza Strip. In the imagination of the planners, Hamas is an invader which has gained control of a foreign country. The reality is, of course, entirely different.

The Hamas movement won the majority of the votes in the eminently democratic elections that took place in the West Bank, East Jerusalem and the Gaza Strip. It won because the Palestinians had come to the conclusion that Fatah’s peaceful approach had gained precisely nothing from Israel - neither a freeze of the settlements, nor release of the prisoners, nor any significant steps toward ending the occupation and creating the Palestinian state. Hamas is deeply rooted in the population – not only as a resistance movement fighting the foreign occupier, like the Irgun and the Stern Group in the past – but also as a political and religious body that provides social, educational and medical services.

From the point of view of the population, the Hamas fighters are not a foreign body, but the sons of every family in the Strip and the other Palestinian regions. They do not “hide behind the population”, the population views them as their only defenders.

Therefore, the whole operation is based on erroneous assumptions. Turning life into living hell does not cause the population to rise up against Hamas, but on the contrary, it unites behind Hamas and reinforces its determination not to surrender. The population of Leningrad did not rise up against Stalin, any more than the Londoners rose up against Churchill.

He who gives the order for such a war with such methods in a densely populated area knows that it will cause dreadful slaughter of civilians. Apparently that did not touch him. Or he believed that “they will change their ways” and “it will sear their consciousness”, so that in future they will not dare to resist Israel.

A top priority for the planners was the need to minimize casualties among the soldiers, knowing that the mood of a large part of the pro-war public would change if reports of such casualties came in. That is what happened in Lebanon Wars I and II.

This consideration played an especially important role because the entire war is a part of the election campaign. Ehud Barak, who gained in the polls in the first days of the war, knew that his ratings would collapse if pictures of dead soldiers filled the TV screens.

Therefore, a new doctrine was applied: to avoid losses among our soldiers by the total destruction of everything in their path. The planners were not only ready to kill 80 Palestinians to save one Israeli soldier, as has happened, but also 800. The avoidance of casualties on our side is the overriding commandment, which is causing record numbers of civilian casualties on the other side.

That means the conscious choice of an especially cruel kind of warfare – and that has been its Achilles heel.

A person without imagination, like Barak (his election slogan: “Not a Nice Guy, but a Leader”) cannot imagine how decent people around the world react to actions like the killing of whole extended families, the destruction of houses over the heads of their inhabitants, the rows of boys and girls in white shrouds ready for burial, the reports about people bleeding to death over days because ambulances are not allowed to reach them, the killing of doctors and medics on their way to save lives, the killing of UN drivers bringing in food. The pictures of the hospitals, with the dead, the dying and the injured lying together on the floor for lack of space, have shocked the world. No argument has any force next to an image of a wounded little girl lying on the floor, twisting with pain and crying out: “Mama! Mama!”

The planners thought that they could stop the world from seeing these images by forcibly preventing press coverage. The Israeli journalists, to their shame, agreed to be satisfied with the reports and photos provided by the Army Spokesman, as if they were authentic news, while they themselves remained miles away from the events. Foreign journalists were not allowed in either, until they protested and were taken for quick tours in selected and supervised groups. But in a modern war, such a sterile manufactured view cannot completely exclude all others – the cameras are inside the strip, in the middle of the hell, and cannot be controlled. Aljazeera broadcasts the pictures around the clock and reaches every home.

The battle for the TV screen is one of the decisive battles of the war.

Hundreds of millions of Arabs from Mauritania to Iraq, more than a billion Muslims from Nigeria to Indonesia see the pictures and are horrified. This has a strong impact on the war. Many of the viewers see the rulers of Egypt, Jordan and the Palestinian Authority as collaborators with Israel in carrying out these atrocities against their Palestinian brothers.

The security services of the Arab regimes are registering a dangerous ferment among the peoples. Hosny Mubarak, the most exposed Arab leader because of his closing of the Rafah crossing in the face of terrified refugees, started to pressure the decision-makers in Washington, who until that time had blocked all calls for a cease-fire. These began to understand the menace to vital American interests in the Arab world and suddenly changed their attitude – causing consternation among the complacent Israeli diplomats.

People with moral insanity cannot really understand the motives of normal people and must guess their reactions. “How many divisions has the Pope?” Stalin sneered. “How many divisions have people of conscience?” Ehud Barak may well be asking.

As it turns out, they do have some. Not numerous. Not very quick to react. Not very strong and organized. But at a certain moment, when the atrocities overflow and masses of protesters come together, that can decide a war.

The failure to grasp the nature of Hamas has caused a failure to grasp the predictable results. Not only is Israel unable to win the war, Hamas cannot lose it.

Even if the Israeli army were to succeed in killing every Hamas fighter to the last man, even then Hamas would win. The Hamas fighters would be seen as the paragons of the Arab nation, the heroes of the Palestinian people, models for emulation by every youngster in the Arab world. The West Bank would fall into the hands of Hamas like a ripe fruit, Fatah would drown in a sea of contempt, the Arab regimes would be threatened with collapse.

If the war ends with Hamas still standing, bloodied but unvanquished, in face of the mighty Israeli military machine, it will look like a fantastic victory, a victory of mind over matter.

What will be seared into the consciousness of the world will be the image of Israel as a blood-stained monster, ready at any moment to commit war crimes and not prepared to abide by any moral restraints. This will have severe consequences for our long-term future, our standing in the world, our chance of achieving peace and quiet.

In the end, this war is a crime against ourselves too, a crime against the State of Israel.

Available at Middle East Online and at Gush Shalom.

Memo For Obama

06/12/08
For: the President-Elect, Mr. Barack Obama.
From: Uri Avnery, Israel.

The following humble suggestions are based on my 70 years of experience as an underground fighter, special forces soldier in the 1948 war, editor-in-chief of a newsmagazine, member of the Knesset and founding member of a peace movement:

-1- As far as Israeli-Arab peace is concerned, you should act from Day One.

-2- Israeli elections are due to take place in February 2009. You can have an indirect but important and constructive impact on the outcome, by announcing your unequivocal determination to achieve Israeli-Palestinian, Israeli-Syrian and Israeli-all-Arab peace in 2009.

-3- Unfortunately, all your predecessors since 1967 have played a double game. While paying lip service to peace, and sometimes going through the motions of making some effort for peace, they have in practice supported our governments in moving in the very opposite direction. In particular, they have given tacit approval to the building and enlargement of Israeli settlements in the occupied Palestinian and Syrian territories, each of which is a land mine on the road to peace.

-4- All the settlements are illegal in international law. The distinction sometimes made between “illegal” outposts and the other settlements is a propaganda ploy designed to obscure this simple truth.

-5- All the settlements since 1967 have been built with the express purpose of making a Palestinian state – and hence peace - impossible, by cutting the territory of the prospective State of Palestine into ribbons. Practically all our government departments and the army have openly or secretly helped to build, consolidate and enlarge the settlements – as confirmed by the 2005 report prepared for the government (!) by Lawyer Talia Sasson.

-6- By now, the number of settlers in the West Bank has reached some 250,000 (apart from the 200,000 settlers in the Greater Jerusalem area, whose status is somewhat different.) They are politically isolated, and sometimes detested by the majority of the Israel public, but enjoy significant support in the army and government ministries.

-7- No Israeli government would dare to confront the concentrated political and material might of the settlers. Such a confrontation would need very strong leadership and the unstinting support of the President of the United States to have any chance of success.

-8- Lacking these, all “peace negotiations” are a sham. The Israeli government and its US backers have done everything possible to prevent the negotiations with both the Palestinians and the Syrians from reaching any conclusion, for fear of provoking a confrontation with the settlers and their supporters. The present “Annapolis” negotiations are as hollow as all the preceding ones, each side keeping up the pretense for its own political interests.

-9- The Clinton administration, and even more so the Bush administration, allowed the Israeli government to keep up this pretense. It is therefore imperative to prevent members of these administrations from diverting your Middle Eastern policy into the old channels.

-10- It is important for you to make a complete new start, and to state this publicly. Discredited ideas and failed initiatives – such as the Bush “vision”, the Road Map, Annapolis and the like – should by thrown into the junkyard of history.

-11- To make a new start, the aim of American policy should be stated clearly and succinctly. This should be: to achieve a peace based on the Two-State Solution within a defined time-span (say by the end of 2009).

-12- It should be pointed out that this aim is based on a reassessment of the American national interest, in order to extract the poison from American-Arab and American-Muslim relations, strengthen peace-oriented regimes, defeat al-Qaeda-type terrorism, end the Iraq and Afghanistan wars and achieve a viable accommodation with Iran.

-13- The terms of Israeli-Palestinian peace are clear. They have been crystallized in thousands of hours of negotiations, conferences, meetings and conversations. They are:

• 13.1 A sovereign and viable State of Palestine will be established side by side with the State of Israel.
• 13.2 The border between the two states will be based on the pre-1967 Armistice Line (the “Green Line”). Insubstantial alterations can be arrived at by mutual agreement on an exchange of territories on a 1:1 basis.
• 13.3 East Jerusalem, including the Haram-al-Sharif (“Temple Mount”) and all Arab neighborhoods will serve as the capital of Palestine. West Jerusalem, including the Western Wall and all Jewish neighborhoods, will serve as the capital of Israel. A joint municipal authority, based on equality, may be established by mutual consent to administer the city as one territorial unit.
• 13.4 All Israeli settlements – except any which might be joined to Israel in the framework of a mutually agreed exchange of territories - will be evacuated (see 15 below).
• 13.5 Israel will recognize in principle the right of the refugees to return. A Joint Commission for Truth and Reconciliation, composed of Palestinian, Israeli and international historians, will examine the events of 1948 and 1967 and determine who was responsible for what. Each individual refugee will be given the choice between (1) repatriation to the State of Palestine, (2) remaining where he/she is living now and receiving generous compensation, (3) returning to Israel and being resettled, (4) emigrating to any other country, with generous compensation. The number of refugees who will return to Israeli territory will be fixed by mutual agreement, it being understood that nothing will be done that materially alters the demographic composition of the Israeli population. The large funds needed for the implementation of this solution must be provided by the international community in the interest of world peace. This will save much of the money spent today on military expenditure and direct grants from the US.
• 13.6 The West Bank, East Jerusalem and the Gaza Strip constitute one national unit. An extraterritorial connection (road, railway, tunnel or bridge) will connect the West Bank with the Gaza Strip.
• 13.7 Israel and Syria will sign a peace agreement. Israel will withdraw to the pre-1967 line and all settlements on the Golan Heights will be dismantled. Syria will cease all anti-Israeli activities conducted directly or by proxy. The two parties will establish normal relations between them.
• 13.8 In accordance with the Saudi Peace Initiative, all member states of the Arab League will recognize Israel and establish normal relations with it. Talks about a future Middle Eastern Union, on the model of the EU, possibly to include Turkey and Iran, may be considered.

-14- Palestinian unity is essential for peace. Peace made with only one section of the people is worthless. The US will facilitate Palestinian reconciliation and the unification of Palestinian structures. To this end, the US will end its boycott of Hamas, which won the last elections, start a political dialogue with the movement and encourage Israel to do the same. The US will respect any result of democratic Palestinian elections.

-15- The US will aid the government of Israel in confronting the settlement problem. As from now, settlers will be given one year to leave the occupied territories voluntarily in return for compensation that will allow them to build their homes in Israel proper. After that, all settlements – except those within any areas to be joined to Israel under the peace agreement - will be evacuated.

-16- I suggest that you, as President of the United States, come to Israel and address the Israeli people personally, not only from the rostrum of the Knesset but also at a mass rally in Tel-Aviv’s Rabin Square. President Anwar Sadat of Egypt came to Israel in 1977, and, by addressing the Israeli people directly, completely changed their attitude towards peace with Egypt. At present, most Israelis feel insecure, uncertain and afraid of any daring peace initiative, partly because of a deep distrust of anything coming from the Arab side. Your personal intervention, at the critical moment, could literally do wonders in creating the psychological basis for peace.

Available at Gush Shalom.

Beyond Militarization: Legalization of the Israeli-Palestinian Conflict and The Globalization of Human Rights Law

The following is in response to Jonathan Simon’s post at PrawfsBlawg, “Israel’s Silent Weapon,” which I found in the main interesting and suggestive. However, I was not permitted to place a comment there (it was identified as requiring prior approval of the post’s author, which it twice failed to receive) so I decided to post it here, albeit with substantial modifications (including additional commentary and references).

Simon argues that in light of what he calls Israel’s “impressive legal culture,” a “law offensive against Hamas or Fatah would cast international light on [a] different set of champions for the Palestinian side then those with starring roles in this offensive.” I’m not at all against a “law offensive” in the international arena (which unavoidably entails a role for the U.N. and its affiliate institutions), especially in light of the fact that the Palestinians have attempted for quite a long time to conduct such an offensive themselves, although to little avail, and despite Simon’s insinuation that only now is a “legal culture” beginning to emerge among the Palestinians: “The Palestinians, more on the West Bank than Gaza, have also begun to generate a potent legal culture (much of its [sic] schooled in battles fought in the occupation courts) one fully capable of transmitting their national grievances into strong claims in human rights law" [emphasis added].

There are a few things troubling about this remark. The first is the comparative devaluation of the Palestinians from Gaza, no doubt owing to the fact that they had the audacity if not temerity to freely elect an Hamas-led government to represent their aspirations, a fact made possible by the Israelis’ success in destroying the bulk of governing powers possessed by the Palestinian National Authority as well as its shrewd employment of a “divide-and-conquer” strategy against the Palestinians, the latter (in addition to the internal problems [e.g., corruption] among PNA’s leaders) serving to help “radicalize” many Palestinians, prompting them to look to Hamas for a new direction and way out of the socio-economic and political morass they have long been mired in. Relatedly, the Israelis have afforded the Palestinians in both the West Bank and Gaza notoriously few and meager opportunities with which to develop an indigenous and vigorous “potent legal culture.” When many of the most basic needs of your people are being met by U.N. relief agencies,* it’s not hard to imagine the absence of sufficient energy and resources to devote to developing a robust legal culture! Nevertheless, and all things considered, the Palestinian leadership, with help from sympathizers in and outside Israel, can be credited with developing an "innovative media savvy legal and diplomatic campaign."

But we might also question a presupposition of Simon’s remark insofar as it insinuates Hamas and those in Gaza, indeed, all Palestinians, somehow and until most recently have been without a “potent legal culture.” Palestinians who are Muslims at least can lay claim to quite an historically and comparatively impressive legal culture, one grounded in Islamic legal traditions and schools expressed in a plurality of forms throughout the Islamic world. For a sampling of the literature in English on this impressive legal tradition, see the section on “Islamic Law” in my Comparative Law bibliography posted at the Legal Profession Blog (I will have an updated section on Islamic Law in my forthcoming Islamic Studies bibliography which will be posted here as part of the Directed Reading series). In any case, Palestinians are intimately familiar with, and have had a long-standing respect for, “legal culture,” as the book by Boyle below attests. Palestinians have not resorted to (self-defense and) violence because it's "in their nature," as if they have some national and ethnic predilection or predisposition to same, but because they've been driven to commit acts of desperation, having tried both legal (which, in self-defense, legitmates the use of violence) and non-violent strategies since the founding of the state of Israel over forty years ago.

I was delighted to see favorable mention of Lisa Hajjar’s book. What was not said, however, is also of particular interest: Hajjar is a very good friend of Professor Richard Falk, an international law scholar (emeritus) and U.N. Special Rapporteur on Palestine who was recently denied entrance into Israel and the West Bank. She posted on this at IntLawGrrls blog, and we discussed it at Opinio Juris [the site has been having some problems so be patient]. Given Simon’s desire to see things move to the international legal arena in light of human rights law, it’s a bit puzzling that there was no mention of this recent incident, as it helps illustrate the often intractable difficulties and characteristic obstacles faced by the Palestinians when they have placed trust and hope in the institutions and media of international legal fora and human rights law. Incidentally, together with Hilal Elver, Falk and Hajjar have edited a 5 volume work, Human Rights: Critical Concepts (in Political Science), (2007).

The “legalization” that Professor Simon ardently desires has been attempted for some time now by the Palestinians, while the Israelis have shown little more than contempt for international legal opinions and rulings, and especially resolutions passed by the Security Council and General Assembly of the United Nations. Most glaringly, Israel has ignored UNSC Resolutions 242 and 338, and actively blocked meaningful attempts by Palestinians to exercise their international legal right of (collective) self-determination. Israel has repeatedly violated provisions in the Fourth Geneva Convention. It's hard to discern respect for Palestinian legal rights in the repeated infliction of “collective punishment” on the Palestinians in the West Bank and Gaza. Few were therefore surprised when Israel derisively dismissed the Advisory Opinion of the International Court of Justice that declared the "security wall" being constructed on the Occupied Territory was illegal and should be dismantled (14-1: the lone negative vote was cast by an American judge, although the ostensible reason was lack of sufficient evidence to warrant the tribunal’s conclusion). Alas, as we learned from the war in Iraq (and should have learned from the Vietnam war...), a flourishing municipal legal culture, even one found in a democratic state, is no guarantee a government will show corresponding respect for the international and transnational legal culture that gave birth to human rights law.

So, any further movement in the direction of “legalization” as suggested by Simon should take cognizance of, from the Palestinian perspective at any rate (I'll leave it to others to address the specifically Israeli side of the equation), Francis A. Boyle's Palestine, Palestinians and International Law (2003), which is an example of one persistent attempt to use "international law to clarify and resolve the Israeli/Palestinian conflict." A brief introduction in this regard is Richard Falk's "International Law and Palestinian Resistance," found in Joel Beinin and Rebecca L. Stein, eds., The Struggle for Sovereignty: Palestine and Israel, 1993-2005 (2006): 315-323.

Perhaps needless to say, I'm in agreement with Simon's conclusion:

[O]ne might hope that the global dispersal human rights law as a governmental discourse is now at a stage where innovative, even if largely performative acts of legal and diplomatic campaigning, could be worth at try as an alternative between doing nothing (which Israeli leaders claim was their pre-war strategy) and launching a bloody military campaign that has low odds of achieving its objectives.

This, in fact, is where the Israelis might welcome the opportunity to learn from the long-standing if frustrating experience of their Palestinian brothers and sisters in those international legal fora that at least profess a commitment to the fundamental value of human rights law (responding here to Simon's statement that much of whatever 'legal culture' the Palestinians possess was 'schooled' in Israeli occupation courts).

Here is a sampling of papers related to "legalization" of the conflict and the significance of human rights to such a project:

Richard Falk and Burns H. Weston, "The Relevance of International law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada," Harvard International Law Journal 32, No. 1 (1991): 129-150.

Richard Falk and Burns H. Weston, "The Israeli-Occupied Territories, International Law, and the Boundaries of Scholarly Discourse: A Reply to Michael Curtis," Harvard International Law Journal 33 No. 1 (1992): 191-204.

Aeyal M. Gross, "Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?", The European Journal of International Law, Vol. 18, No. 1 (2007): 1-35.

Victor Kattan, "From Beirut to Brussels: Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres," 11 Yearbook of Islamic and Middle Eastern Law (2004/5), pp. 33-82.

Victor Kattan, "The Use and Abuse of Self-Defense in International Law: The Israeli-Hezbollah Conflict as a Case Study," available: http://ssrn.com/abstract=994282

Edward Kaufman and Ibrahim Bishart, "Introducing Human Rights into Conflict Resolution: The Relevance for the Israeli-Palestinian Peace Process," Journal of Human Rights, Vol. 1, No. 1 (March 2002): 71-91.

Louay M. Safi, "Human Rights and Islamic Legal Reform." I can't recall where I found this important paper but it should be easy enough to find with a "google" search.

Niaz A Shah, "Jihad: Self-Defence in Islamic Law," 12 Yearbook of Islamic and Middle Eastern Law (2005/6)

Adrien K. Wing and Hisham A. Kassim, "Hamas, Constitutionalism, and Palestinian Women," University of Iowa Legal Studies Research Paper, No. 08-21, Howard Law Journal, Vol. 50, No. 2, 2007. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130219


And a few books indispensable to the aforementioned endeavor:

An-Na’im, Abdullahi Ahmed. Islam and the Secular State: Negotiating the Future of Shari‘ah. Cambridge, MA: Harvard University Press, 2008.

Baderin, Mashood A. International Human Rights and Islamic Law. New York: Oxford University Press, 2003.

Bowen, Stephen, ed. Human Rights, Self-Determination, and Political Change in the Occupied Palestinian Territories. The Hague: Kluwer Law International, 1997.

Boyle, Francis A. Palestine, Palestinians and International Law. Atlanta, GA: Clarity Press, 2003.

Cotran, Eugene and Mai Yamani, eds. The Rule of Law in the Middle East and Islamic World: Human Rights and the Judicial Process. London: I.B. Tauris, 2000.

Khadduri, Majid. The Islamic Conception of Justice. Baltimore, MD: Johns Hopkins University Press, 1984.

Khadduri, Majid. War and Peace in the Law of Islam. Baltimore, MD: Johns Hopkins University Press, 1955.

Khadduri, Majid, trans. The Islamic Law of Nations: Shaybānī’s Siyar. Baltimore, MD: Johns Hopkins University Press, 2002.

Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Press, 4th ed., 2007.

Rehman, Javaid and Susan C. Breau, eds. Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices. The Hague: Martinus Nijhoff, 2007.

For a list of titles that enable one to place questions of legality and human rights within the larger historical and political context (after all, law and politics are, for better and worse, inextricably intertwined, nonetheless, I believe law is capable of bringing us somewhere betwixt and between 'apology and utopia,' to borrow from the title of Martti Koskenniemi's important book on the structure of international legal argument), please see my post below. You’ll also find there a list of human rights organizations with excellent websites useful for research. As a prelude to (or in lieu of) reading the books in that list, I would highly recommend Joel Beinin and Lisa Hajjar’s “Palestine, Israel, and the Arab-Israeli Conflict: A Primer,” available at the website for The Middle East Research and Information Project (MERIP).

Finally, as the topic is unavoidable, books and articles (from transdisciplinary perspectives) on "terrorism" are found in my bibliography for same, available in an early draft at the Legal Ethics Forum.

* An excellent précis of the socio-economic conditions in Gaza is found in Sara Roy's piece, "If Gaza Falls...," London Review of Books, Vol. 31, No. 1 (1 January 2009).

Update: My original comment has now (Jan. 11) been posted at Prawfs.

Israel and Democracy: Beyond Zionism?

The ever-provocative Sandy Levinson has an important post at Balkinization on "Democracy and Dictatorship" with respect to the state of Israel. I am not happy with the apparent reason behind the juxtaposition of these terms as used by Professor Levinson, for he aims to underscore "the point that all political systems, including those we justifiably label as 'democratic,' contain within them aspects of 'dictatorship' as well, in which decisions of life and death are made without prior approval by the demos." This assumes that much that is anti- or non-democratic within a would-be democratic polity is by default dictatorial, and I think that's simply not true. Let's leave that particular argument for another day. Levinson begins by stating, importantly and unequivocally, that

There can be little doubt that Israel counts as a "democracy," certainly with regard to the majority Jewish population and even with regard to Israel's Arab citizens, who participate in elections and are able to elect some ethnic Arab represenatives. Certainly no other country in "the region" comes so close to meeting the standards of democratic rule.

I address the question of the "democratic" character of the state of Israel in my comments to his post (pasted below), but first let's look at the specific example used to illustrate his larger point:

[It is] necessary to note that the debatable scope of the present war in Gaza, even if one accepts the view, as I do, that it was precipitated by the failure of Hamas to continue the truce and their decision to lob rockets into Israeli territory, has been decided upon by an Israeli government that is just as lame-duck as our own. Moreover, it is hard to escape the view that the most relevant decisionmakers are motivated by their deep (and altogether justifiable) desire to forestall the return to power of Benjamin Netenyahu and, therefore, determined to prove to his potential supporters that they are as willing to use military force, regardless of consequences to the Palestinians, as he presumably would be. It is hard for me otherwise to understand the decisions that Israeli leaders have made, given the foreseeable failure to eliminate Hamas as a political force in Gaza.

It's refreshing to find the decision to bomb and invade Gaza described as "debatable." And I happen to think there's much to the argument cited here about the possible political (in a rather crass sense) reasons behind that decision. In my comment to his post I atttempted to speak to the question of how this might be related to the democratic character of Israel in a manner ignored or overlooked by Levinson but raised by myself and several other commenters. As I wrote,

While I largely agree with your (comparative) characterization of Israel as "democratic" (in other words, I would not agree with some critics [e.g., Oren Yiftachel] who would go so far as to describe Israel as a non-democratic 'ethnocracy'), one telling and I think troubling circumscription of Israel's democracy is the focus of (neo-)Zionists on the Jewish character of Israel, with no pretense whatsoever to separation of church and synagogue, so to speak. This is made quite clear in Aharon Barak's The Judge in a Democracy (2006). Barak reminds us that "Israel was founded as the state of the Jewish people. [The founding of not a few nation-states on along exclusivist ethnic and/or religious principles is similar in this regard, but what is more troubling is what, at least for Barak and other Israeli leaders, follows from this historical premise, namely, an axiomatic 'constitutional' premise:] The reason for the existence of the State of Israel is its existence as a Jewish state. That character is central to its existence, and it is 'an "axiom" of the state.' It is a 'fundamental principle of our law and our system.' We therefore cannot allow a list or an individual seeking to negate this reason and this foundation to participate in elections." This goes far beyond requiring would-be electoral participants to recognize the right of the state of Israel to exist, for it excludes participants who would seek to put all religious and other worldviews on equal footing with Judaism vis-a-vis the democratic character of the nation-state of Israel.

The concern is not with a democractic state simpliciter (i.e., negating the existence thereof as found in the explicit or implicit 'goals' or actions of a candidate list), but with negating the existence of a "Jewish and democratic state." Needless to say, Israel's so-called demographic problem may turn this amended (in 1992) Basic Law (as interpreted and applied by the Supreme Court) into a pragmatic contradiction. Concrete consequences are not lacking: pervasive discrimination against Arab citizens, the political role of religion, the blurring of the state's geography, including the military control and settlement of territory in the West Bank and Gaza (e.g., roughly '60 percent of the West Bank is now held by Israeli Jews as private, state, or military land,' and segregation is very real for Orthodox and Ultra-Orthodox Jews, Russian immigrants, and Palestinian Arabs, among others). And this should not prevent us from acknowledging whenever and wherever Israeli authorities have taken significant steps toward deepening those democratic features which do in fact exist.

Again, what is troubling is the legislative, political and cultural licensing of the notion that one cannot sufficiently separate, in the case of Israel, the "Jewish" from "the democratic," hence even well-motivated or well-meaning criticisms of the Jewish nature of the state are seen as equivalent to, indeed, are in fact reduced to, "attacks on democracy." The Judaization of Israel should therefore remain an important concern for all who cherish the democratic elements of this state, especially in light of the "Arab demographic danger" and the resistance of Palestinians to a particular government's agenda and policies, including [those of the] IDF.

Read the comment by "Mourad" at Balkinization as well, and not just because he believes my remarks were a "start along the road" to exploring the question of "whether [or not] Israel is a true democracy." To reiterate: I think it's fair and important to characterize Israel as a democracy, but it has some distance to go in ridding itself of those Zionist features that have come to be indissolubly associated with Israel insofar as it is at the same time (normatively) described as a Jewish state. Note that I'm not making the claim that all those who historically identified with Zionism were Jewish in the religious sense, they were not, but those who favored a more messianic-like religious understanding of Zionism were front and center among the founders of the state of Israel and have remained the ideological pool from which its political leadership has been drawn. Note too, and despite what Professor David Bernstein of Volokh Conspiracy has said about my views (I've been unable to access the post this morning by Kevin Jon Heller at Opinio Juris--on 'Dershowitz, Israel and Proportionality'--wherein Bernstein makes this unsubstantiated claim, what is in effect an outrageous and absolutely false inference from other statements I've made), I assume the state of Israel has every right to exist as a modern, democratic nation-state. Update: For Kevin's post with Bernstein's claim, see here (1.03.2009 at 5:23 pm EST). It's placed in a shaded box in yet another post (Professor Heller has received an apology, but I have not).

Addendum: I suspect the remark that "those who favored a more messianic-like religious understanding of Zionism were front and center..." bears some elaboration. First, I should have left out the adjective "religious" to get across the idea that self-declared secular Jews among the political leaders were messianic as well. This is made clear in Jacqueline Rose's The Question of Zion (2005), for in the end, there turned out to be very little difference between secular and religious Zionists: both imbued nationalism with a messianic strain, for leaders like Weizmann "merely displaced" the "false messianic hope" they avowedly "relinquished." Indeed, "the language of secular Zionism bears the traces and scars of a messianic narrative that it barely seeks, or fails, to repress." An exemplar here is David Ben-Gurion: "A secular Jew, like so many of the key figures in the early political history of Zionism, Ben-Gurion bequeathed to Israel in his rhetoric the messianic destiny of the nation-in-waiting," as the "language of salvation and redemption saturates...[his] prose." One disturbing consequence: "Under pressure of the biblical narrative, two thousand years of history fall into the dust," one reason why Palestine, to the Zionists, was a "land without a people" (when confronted with unavoidable empirical evidence to the contrary, 'ethnic cleasing' became the norm: cf. Ilan Pappe's The Ethnic Cleansing of Palestine, 2006). Ben-Gurion understood the implications: "We must create a majority in the Land of Israel in the next twenty years." Is it any wonder that, today, Israel's "demographic problem" is both a manifest and latent cause of so much political and cultural anxiety? For better and more often for worse, "Messianism, as unconscious inspiration, is in the air and soil of Israel."

Update 2: While reading, of all things, Joseph Raz's Value, Respect, and Attachment (2001), I came across the following clarification of Barak's understanding of a "Jewish state:"

An Israeli Basic Law declares that the State of Israel is a Jewish state. Israeli courts struggled with the implications of the law for their practice. The president of the Supreme Court, Mr. Justice Barak, said that a Jewish state means a state which embraces the values which Judaism gave the world, namely (and I quote) 'the love of mankind, the sanctity of life, social justice, equity, protecting human dignity, the rule of law over the legislature, etc.' I think that he gave the statute the only acceptable interpretation. Notice that in the same sense France too can be a Jewish state. It too can embrace the values which Judaism gave to the world.... Indeed, it may well be said that in that sense no state can be a morally good state unless it is a Jewish state. Does that show that Barak adopted the wrong interpretation? Did he not empty that article in the law of all meaning? No and yes. He did empty the law of meaning, but it was the right thing to do. It would be wrong to suppose that on top of following justice, equity, dignity, and other universal values, Israeli law should follow some additional specifically Jewish values, which may conflict with justice or other values, and compromise them. (pp. 37-38)

Unfortunately, the fact that the wording of the law remains on the books, means it is always liable to an interpretation other than that provided by Barak. Indeed, if the law is thereby emptied of all meaning, why not change it? The plain meaning of the language here is not at all conducive to the secular apologetic gloss, indeed, it implicates the centrality of "specifically Jewish values" in the State by its inclusion and non-Jews can be forgiven for understanding it in just that fashion. For more on Barak's identity as a cultural Jew and secular Zionist, see here. (There was an interview in Haaretz some years ago with Barak in which he explains his personal views but I was unable to find it).

It would be instructive to consult Aharon Barak's Purposive Interpretation in Law (2005) by way of interpreting the language of the aforementioned Basic Law and to explain precisely why, in Raz's words, he "emptied [that article of] the law of meaning." For instance, Barak writes that "The judge must give the language of the text a meaning that will not 'tear' the 'surface casing' of the words of sentences." Moreover,

Purposive interpretation is based on language, purpose, and discretion. Language sets the limits of interpretation. Purpose determines the choice of legal meanings, within the boundaries of language. Discretion operates when the purpose of the text does not point to a single, unique legal meaning. [....] The range of semantic possibilities includes the language's totality of meanings [elsewhere Barak discusses the 'extraction' of legal meaning from semantic meaning]. It includes the natural and ordinary meaning and the exceptional and special meaning. Of course, the [rebuttable] presumption is that the purpose of a norm is expressed in its natural and ordinary language. [....] [In ascertaining the 'authorial intent' or 'subjective purpose' of a text, judges] give the language of the text its natural and ordinary meaning. They assume that accepted semantic conventions are honored. They employ rules of logic, reasonableness, and common sense. They look for normative harmony within the text's totality. [....] The objective purpose of a legal text is the intent of the reasonable author. At a high level of abstraction, it is the 'intent of the system.' The intent of the system is the values, objectives, interests, policy, and function that the text is designed to actualize in a democracy. It is determined by objective criteria.

Of course it was the "intent of the system" that Barak relied on to interpret the "Jewish" character of the State to mean the constitutional quintessence of secular democratic values and principles wholly bereft of anything uniquely Jewish whatsoever!

I'll leave comments open as long as they are civil and not predominantly or unjustifiably ad hominem (if you're uncertain as to what that means, think, for instance, of the Republic of Letters and French salons of the European Enlightenment).

Utopian Thought & Imagination: Part 2

In our first post on this topic we examined, among other things, Russell Jacoby's Picture Imperfect: Utopian Thought for an Anti-Utopian Age (2005). Jacoby divides utopian thought and imagination into two broad categories (or genres): the "blueprint tradition" and the "iconoclastic tradition." The categorization is not purely descriptive, as Jacoby aims to demonstrate the latter tradition has been relatively neglected and the former tradition rightly castigated for giving rise to all sorts of ethical and political problems if not horrors. The principal problem with the blueprint tradition is that individuals and groups are said to use these blueprints as concrete models for constructing their particular dream of a better world here and now, without delay. Those attracted to this utopian genre apparently lack all ability to discern a logical or political gap between theory and praxis and, relatedly, are not at all reluctant to resort to coercion and violence as means and methods for impatiently instantiating their visions and values in the world. I do not think this is either an accurate summary or plausible picture of the function of utopian thought and imagination in history (for reasons found in the arguments of the books in our forthcoming selected bibliography on the subject).

In this post I would like to share some thoughts from the political philosopher William A. Galston that capture in large measure both the way utopian thought has functioned and, in any case, should function in relation to political thought and action. In other words, even if one believes utopias have not been understood by political actors in the manner outlined, we should appreciate the extent to which Galston provides us with the conclusions of a compelling argument for how they ought to function. This material is from his book Justice and the Human Good (1980). Galston helps us see the misleading character of Jacoby's simplistic typology, in particular, how utopias are not on the order of "blueprints" or architectural plans at all:

Utopias are images of ideal communities; utopian thought tries to make explicit and to justify the principles on the basis of which communities are said to be ideal. [….] [T]he philosophical importance of utopias rests on utopian thought, although the practical effect of a utopia may be quite independent of its philosophic merits. [....]

Utopian thought performs three related political functions. First, it guides our deliberation, whether in devising courses of action or in choosing among exogenously defined alternatives with which we are confronted. Second, it justifies our actions; the grounds of action are reasons that others ought to accept and—given openness and the freedom to reflect—can be led to accept. Third, it serves as the basis for the evaluation of existing institutions and practices. The locus classicus is the Republic, in which the completed ideal is deployed in Plato’s memorable critique of imperfect regimes. [....]

Utopian thought attempts to specify and justify the principles of a comprehensively good political order. Typically, the goodness of that order rests on the desirability of the way of life enjoyed by the individuals within it; less frequently, its merits rely on organic features that cannot be reduced to individuals. Whatever their basis, the principles of the political good share certain general features:

First, utopian principles are in their intention universally valid, temporally and geographically.

Second, the idea of the good order arises out of our experience but does not mirror it in any simple way and is not circumscribed by it. Imagination may combine elements of experience into a new totality that has never existed; reason, seeking to reconcile the contradictions of experience, may transmute its elements.

Third, utopias exist in speech; they are “cities of words.” This does not mean that they cannot exist but only that they need not ever. This “counterfactuality” of utopia in no way impedes its evaluative function.

Fourth, utopian principles may come to be realized in history, and it may be possible to point to real forces pushing in that direction. But our approval of a utopia is not logically linked to the claim that history is bringing us closer to it or that we can identify an existing basis for the transformative actions that would bring it into being. Conversely, history cannot by itself validate principles. The movement of history (if it is a meaningful totality in any sense at all) may be from the most desirable to the less; the proverbial dustbin may contain much of enduring worth.

Fifth, although not confined to actual existence, the practical intention of utopia requires that it be constrained by possibility. Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.

Sixth, although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstance. The relation between the ideal and the best achievable is not deductive. [….]

Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.

This is far and away the best summary I've read of the nature and function of utopian thought and imagination. It is no small irony that it comes courtesy of an avowed Liberal political theorist (and quite a good one at that), if only because we might plausibly if not persuasively claim that the utopian potential of Liberalism is largely exhausted, while that found in Marxist, socialist, anarchist, and cosmopolitan political thought is alive and well if not flourishing (if only owing to the failure of Liberalism to transcend--rather than simply rationalize--the capitalist economic system in the name of democratic principles, values and practices).

In Utopian Lights: The Evolution of the Idea of Social Progress (1989), Bronislaw Baczko essentially concurs with Galston:

1. There is no utopia without an overall representation, the idea-image of an alternative society, opposed to the existing social reality, and its institutions, rites, dominant symbols, systems of values, norms of interdictions, hierarchies, relations of dominance and property, its domain reserved to the sacred, and so forth. In other words, there is no utopia without a synthetic and disruptive representation of social otherness. [….]

2. The representations of a different and happy City are the products of a particular way of imagining the social; utopias are one of the places, occasionally the privileged place, where the social imagination is put into practice, where individual and collective social dreams are welcomed, gathered, worked on, and produced. Moreover if utopian imagining activity is focused on overall and synthetic idea-images, it nevertheless is developed through day-to-day reality. The dreams of the happy City are, then, articulated with images of a renewed daily life, and utopias often offer a great luxury of detail in their descriptions of individual and collective daily life. The structural relationships between the representation of the overall society and the detailed images of the ordinary aspects of life are as complex as they are revealing. [….]

3. The alternative society is not only imagined, it is also thought to be consonant with reason, and prides itself on the rationality it brings into play. Utopias want to install reason in the realm of the imagination; in utopias, constant exchanges among social dreams and critical, theoretical, and normative reflection are carefully worked out. The term idea-image to which we often have recourse has the sole aim of bringing these distinctive characteristics of utopian representation to the fore. [….]

4. Utopia is not only imagined and thought, it is made intelligible and communicable in a discourse by which the merging of the idea-images and their integration into a language is accomplished. [T]wo classic paradigms were imposed in utopian discourse from the sixteenth through nineteenth centuries. The first is the utopia of the imaginary voyage. [….] The other paradigm is that of the utopia-proposal for ideal legislation. [….]

5. Every utopia is not necessarily proposed as a program of action or even as a model that would demand intellectual or emotional support. The novelistic utopias are offered most frequently as intellectual games. They only seek to stimulate both the imagination and the critical and moralizing reflection of the readers…. However, sometimes even the utopias presented in the form of an imaginary voyage inspire a will to act and to give some of their ideas a practical application. [….] But there are utopias that proclaim themselves as both a prophetic and a founding word, and that find their extensions in the establishment of exemplary communities professing to put them into practice.

Ours appears to be (and with ample reason) a time characterized by the ubiquitousness of dystopian fears and apocalyptic anticipation. In other words, we have been living in a climate inhospitable to utopian thought and imagination. But that may be changing, the proverbial tide may be turning, and we may be on the cusp of a global warming of a different sort:

Certainly, the concept of utopia is only one of the many possible demonstrations of the anxieties, hopes, and pursuits of an era and of a social milieu. The questioning of the legitimacy and rationality of the existing order, the diagnosis and criticism of moral and social defects, the search for remedies, the dreams of a new order, etc.—all these favorite themes of utopias are found in political systems and popular myths, in religious doctrines and in poetry. If the critique of social reality and the expectation of a new City turn toward utopia, that means that a choice has been made among available forms of discourse. What is said in utopia and as utopia cannot be said otherwise. There are “hot” eras when utopias flourish, when the utopian imagination penetrates the most diverse forms of intellectual, political, and literary activity; eras when opposing points of view and divergent main themes seem to rediscover their point of convergence in the very invention of the descriptions of utopias. But there are other “cold” eras, when utopian creativity is weakened and cut off from social, intellectual, and ideological activities. (Bronislaw Baczko)

We will continue this discussion in a future post.

Pico Iyer on Celebrating the New Year

Happy New Year! This is a picture taken on the convent grounds of the Vedanta Temple in the hills above Santa Barbara (just south of the city proper). The bell below is also located on the temple grounds. The Vedanta Temple site is home to one of my favorite bookstores, Sarada Convent Books, with titles from all the world's religions. Just to the right in this photo are magnificent eucalyptus trees and an area where one can sit and enjoy the wonderful vistas toward the Pacific ocean, have a picnic, or read a book!

The following is from my friend Pico Iyer in today's Los Angeles Times:

Reporting from Nara, Japan -- New Year's Day is the hardest holiday to make sense of precisely because it's the easiest one to sleep through; as the most arbitrary of designations -- New Year's falls on different days in Nepal or Ethiopia or China or California -- it asks us, even compels us, to find its meaning within ourselves. Hanukkah, Christmas, Ramadan, Divali: They all follow a larger calendar and come with their own rites and duties. But what to do with a day that, in our Western culture at least, involves mostly snoozing through the bowl games and resolving to remember the resolutions that you know you'll forget by next Tuesday?

My answer is as arbitrary as anyone else's, but it is to see what "new" and "year's" might really mean, by taking myself off to see the grandfather cultures of the world. In Japan, where I live -- old enough to think carefully about new beginnings -- chic girls in kimonos, with stylish stoles around their necks, stream through the orange torii gates of a Shinto shrine soon after a bronze bell tolls in the new year, swains in rock-star suits beside them, to observe the ceremonial first sunrise and to gather sacred fire and pure water from the holy place with which to cook an auspicious first meal. To many in the Westernized nation, though, one of the most popular shrines to visit on New Year's Day is Tokyo Disneyland, where priestly duties may be performed by Mickey and Goofy.

Yet the most crucial rite of what is the most important day of the year in Japan -- even if you begin it in Tomorrowland -- is to go pay your respects to Grandma and root your newness in the old. Like most traditional cultures in the world, Japan knows that "new" is not always the same as "improved" and that "old" does not quite translate as "outdated." [....]

I take care, as my Japanese neighbors do, over my first thought, my first sentence, my first meal; the day itself is for me like the folded white paper that the Japanese collect from shrines outlining their future for the year to come. When, four years ago, New Year's Day found me barreling down a narrow mountain road at 12,000 feet in southern Bolivia and then bouncing and banging around as my taxi rolled over and over -- the driver had fallen asleep at the wheel, a victim of New Year's Eve -- I had the distinct impression that the year that followed might not be entirely happy. (I survived with just a scar, though the driver and the only other passenger ended up in the hospital.)

But my most haunting New Year's in recent times -- walking through the Cambodian jungle at four in the morning, surrounded by Khmer Rouge ghosts and the towers of Angkor -- taught me that the calendar's arbitrary markings are really just asking you how much you define yourself by what's shifting or what's still.

This year, as it happens, I plan to mark the new year in California, wondering how much our fresh young president will draw on the ancestral wisdom of Kansas and Kenya to guide him -- and us -- into a new century. You don't have to travel far, my Japanese neighbors remind me, to turn a new page in your life. The only important thing on New Year's -- I should have reminded my Bolivian taxi driver -- is to wake up.