The Cosmopolitan Left and International Criminal Law

In a post at ReligiousLeftLaw on the Cosmopolitan Left, I wrote: “I assume all ‘liberal radicals’ or ‘radical liberals’ or Leftists generally, be they humanist or religious, are cosmopolitans of one sort or another, and in particular, are committed to what Simon Caney calls cosmopolitan political morality in his book, Justice Beyond Borders: A Global Political Theory (2005).” As a series of books by Danilo Zolo makes clear, this may not be a safe assumption. In particular, Zolo is adamant about what he perceives as the dismal prospects for international criminal justice being achieved through international criminal courts of any sort. In a review of Zolo’s latest book, Victors’ Justice: From Nuremberg to Baghdad (2009 in English), Chase Madar writes that Zolo

“believes it’s time we abandoned our faith in the UN’s ad hoc criminal tribunals, in the reheated medievalism of ‘just war’ theory, and even in the notion of universal human rights, a doctrine increasingly weaponised and called ‘humanitarian intervention.’ International law has failed to prevent countless atrocities, and the great powers suffer no significant penalty for launching wars of aggression, ‘preventive’ or otherwise.”

As an ostensibly Left orientation, Zolo’s views are uncannily close to those of Eric Posner on the Right. His caustic dismissal of the “faith” in international law and institutions includes their characterization as a form of “Kantian utopia devoid of theoretical and political interest.” In Madar’s words,

“Zolo’s arguments show a striking convergence with those of Anglo-American nationalists who, for reasons of their own, are impatient with the admonitions of international law. Like Zolo, they see it as inescapably an instrument of politics, but they draw very different conclusions, disparaging international law as a passive-aggressive means of curtailing American power, a cheap trick practised by European elites and other anti-American cosmopolitans.”

And some of Zolo’s alternative “solutions” sound strangely similar if not identical to those either envisaged or proposed by Philip Bobbitt in his grandiose tome, The Shield of Achilles: War, Peace, and the Course of History (2002), even if the political motivations differ in each instance:

“While admitting that his task is primarily destructive, Zolo does sketch out an alternative. This scheme is of necessity hazy and incomplete for, as he notes in Cosmopolis, ‘in such far-reaching and complex frameworks as the international system, institutional engineering is a mere academic exercise.’ He outlines a modest solution which he labels ‘weak pacifism’, urging the abandonment of the UN in favour of a decentralised, heterogeneous congeries of regional treaties, alliances and peacemaking bodies that would not pretend to curb all military conflict but would still be an improvement on the status quo. These peacemaking bodies would not derive the bulk of their funding, as the UN does, from the great powers and would not be concentrated in Manhattan, London and Paris. His vision is explicitly anti-cosmopolitan, and so against the grain of two centuries of peace theory, which has typically vested its hopes in a supranational body able to wield legitimate force. The new system would be a polyglot Babel, impervious to manipulation by the big powers – hence its appeal.”

Unfortunately, Caney’s book on cosmopolitan political morality does not address international criminal justice and law, focusing instead on civil and political justice, distributive justice, just war, and humanitarian intervention.

I won’t attempt here to counter Zolo’s arguments from a cosmopolitan Left perspective (in any case, Bob Hockett is better qualified for the task), but I would like to make available a reading list for international criminal law, a topic about which we should all become well-acquainted, whatever our criticisms of existing international criminal law procedures and practices. Toward that end, the following is an introductory bibliography for international criminal law and justice.

Please note: this compilation is not meant to cover the topic of transitional justice, nor does it treat the question of “alternatives” to criminal justice (most of which fall under the former rubric), such as truth commissions, non-state or community forms of “local” or “traditional” justice (e.g., the Gacaca court system in Rwanda, which does, however, involve the State), lustration practices, various forms of redress for victims, including reparations, as well as amnesties and pardons. I hope to cover these subjects in another bibliography. Nonetheless, a few of the titles here critique existing and proposed forms of international criminal law based on a strong commitment to the (superior) value of these alternatives.

• Askin, Kelly Dawn. (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Cambridge, MA: Martinus Nijhoff.
• Bass, Gary Jonathan. (2000 ed.) Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press.
• Bassiouni, M. Cherif. (1999, 2nd ed.) Crimes Against Humanity in International Criminal Law. The Hague: Kluwer Law International.
• Bassiouni, M. Cherif. (2003) Introduction to International Criminal Law. Ardsley, NY: Transnational.
• Bekou, Olympia and Robert Cryer, eds. (2004) The International Criminal Court. Aldershot: Ashgate.
• Boas, Gideon, James L. (2008) Bischoff and Natalie L. Reid. International Criminal Law Practitioner Library, Vol. 1: Forms of Responsibility in International Criminal Law. Cambridge, UK: Cambridge University Press.
• Boister, Neil and Robert Cryer. (2008) The Tokyo International Military Tribunal: A Reappraisal.New York: Oxford University Press.
• Broomhall, Bruce. (2003) International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford, UK: Oxford University Press.
• Brouwer, Anne-Marie de. (2005) Supranational Criminal Prosecution of Sexual Violence. The ICC and the Practice of the ICTY and the ICTR. Antwerpen: Intersentia.
• Cassese, Antonio. (2003) International Criminal Law. Oxford, UK: Oxford University Press.
• Cassese, Antonio, ed. (2009). The Oxford Companion to International Criminal Justice. New York: Oxford University Press.
• Cassese, Antonio, Paola Gaeta and John R.W.D. Jones, eds. (2002) The Rome Statute of the International Criminal Court: A Commentary. Oxford, UK: Oxford University Press.
• Combs, Nancy Amoury. (2007) Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach. Stanford, CA: Stanford University Press.
• Cryer, Robert, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst. (2007) An Introduction to International Criminal Law and Procedure. Cambridge, UK: Cambridge University Press.
• Darcy, Shane. (2007) Collective Responsibility and Accountability under International Law. Leiden: Transnational.
• Dinstein, Yoram. War, (2nd ed., 1992) Aggression and Self-Defense. Cambridge, UK: Cambridge University Press.
• Dörmann, Knut. (2003) Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary. Cambridge, UK: Cambridge University Press.
• Driscoll, William, Joseph Zompetti and Suzette W. Zompetti, eds. (2004) The International Criminal Court: Global Politics and the Quest for Justice. New York: The International Debate Education Association.
• Drumbl, Mark A. (2007) Atrocity, Punishment, and International Law. Cambridge, UK: Cambridge University Press.
• Duffy, Helen. (2005) The ‘War on Terror’ and the Framework of International Law. Cambridge, UK: Cambridge University Press.
• Ehrlich, Thomas and Mary Ellen O’Connell. (1993) International Law and the Use of Force. Boston, MA: Little, Brown and Co.
• Ferdinandusse, Ward N. (2006) Direct Application of International Criminal Law in National Courts. The Hague: T∙M∙C∙ Asser Press.
• Findlay, Mark and Ralph Henham. (2005) Transforming International Criminal Justice: Retributive and Restorative Justice in the Trial Process. Portland, OR: Willan Publ.
• Fleck, Dieter, ed. (2nd ed., 2008) The Handbook International Humanitarian Law. Oxford, UK: Oxford University Press.
• Gallant, Kenneth S. (2009) The Principle of Legality in International and Comparative Criminal Law. Cambridge, UK: Cambridge University Press.
• Goldstone, Richard. (2000) For Humanity: Reflections of a War Crimes Investigator. New Haven, CT: Yale University Press.
• Green, Leslie C. (2000) The Contemporary Law of Armed Conflict. New York: Juris
• Greenwood, Christopher. (1999) The Handbook of Humanitarian Law in Armed Conflicts. Oxford, UK: Oxford University Press.
• Henham, Ralph J. (2005) Punishment and Process in International Criminal Trials. Aldershot: Ashgate.
• Henham, Ralph and Paul Behrens, eds. (2007) The Criminal Law of Genocide: International, Comparative, and Contextual Aspects. Burlington, VT: Ashgate.
• Hensel, Howard M., ed. (2005) The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force. Aldershot: Ashgate.
• Herik, L.J. van den. (2005) The Contribution of the Rwanda Tribunal to the Development of International Law. Boston, MA: Martinus Nijhoff.
• Hoogh, Andre. (1996) Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States. The Hague: Kluwer Law International.
• Jones, John R.W.D and Steven Powles. (3rd ed., 2003) International Criminal Practice. Oxford, UK: Oxford University Press.
• Jørgensen, Nina H.B. (2001) The Responsibility of States for International Crimes. Oxford, UK: Oxford University Press.
• Kerr, Rachel. (2004) The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics and Diplomacy. Oxford, UK: Oxford University Press.
• Köchler, Hans. (2003) Global Justice or Global Revenge? International Criminal Justice at the Crossroads. New York: Springer-Verlag.
• Lattimer, Mark and Philippe Sands, eds. (2003) Justice for Crimes Against Humanity. Oxford, UK: Hart.
• Macedo, Stephen, ed. (2004) Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law. Philadelphia, PA: University of Pennsylvania Press.
• May, Larry. (2005) Crimes Against Humanity: A Normative Account. Cambridge, UK: Cambridge University Press.
• May, Larry. (2007) War Crimes and Just War. Cambridge, UK: Cambridge University Press.
• May, Larry. (2010). Genocide: A Normative Account. Cambridge, UK: Cambridge University Press.
• May, Larry and Zachary Hoskins, eds. (2010) International Criminal Law and Philosophy. Cambridge, UK: Cambridge University Press.
• McGoldrick, Dominic, Peter Rowe and Eric Donnelly, eds. (2004) The Permanent International Criminal Court: Legal and Policy Issues. Portland, OR: Hart.
• Melzer, Nils. (2008) Targeted Killing in International Law. New York: Oxford University Press.
• Mettraux, Guénaël. (2005) International Crimes and the Ad Hoc Tribunals. Oxford, UK: Oxford University Press. '
• O’Connell, Mary Ellen. (2005) International Law and the Use of Force: Cases and Materials. New York: Foundation Press.
• Olásolo, Héctor. (2005) The Triggering Procedure of the International Criminal Court. Leiden: Martinus Nijhoff.
• Orakhelashvili, Alexander. (2006) Peremptory Norms in International Law. New York: Oxford University Press.
• O’Shea, Andreas. (2002) Amnesty for Crime in International Law and Practice. The Hague: Kluwer Law International.
• Othman, Mohamed C. (2005) Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor. Berlin: Springer.
• Provost, René. (2002) International Human Rights and Humanitarian Law. Cambridge, UK: Cambridge University Press.
• Quigley, John. (2006) The Genocide Convention: An International Law Analysis. Burlington, VT: Ashgate.
• Ramji, Jaya and Beth Van Schaack, eds. (2005) Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts. Lewiston, NY: Edwin Mellen Press.
• Ratner, Steven R., Jason S. Abrams, and James L. Bischoff. (3rd ed., 2009) Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. New York: Oxford University Press.
• Roach, Steven C. (2006) Politicizing the International Criminal Court. Lanham, MD: Rowman & Littlefield. '
• Rodin, David. (2002) War and Self-Defense. Oxford, UK: Oxford University Press.
• Romano, Cesare P.R., André Nollkaemper and Jann K. Kleffner, eds. (2004) Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia. New York: Oxford University Press.
• Sadat, Leila. (2002) The International Criminal Court and the Transformation of International Law: Justice for the New Millennium. New York: Transnational.
• Safferling, Christoph J. M. (2003) Towards an International Criminal Procedure. New York: Oxford University Press.
• Sands, Philippe, ed. (2003) From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge, UK: Cambridge University Press.
• Saul, Ben. (2006) Defining Terrorism in International Law. New York: Oxford University Press.
• Schabas, William A. (1997, 2nd ed.) The Abolition of the Death Penalty in International Law. Cambridge, UK: Grotius Publications.
• Schabas, William A. (2000) Genocide in International Law: The Crime of Crimes. Cambridge, UK: Cambridge University Press.
• Schabas, William A. (2004, 2nd ed.) An Introduction to the International Criminal Court. Cambridge, UK: Cambridge University Press.
• Schabas, William A. (2006) The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone. Cambridge, UK: Cambridge University Press.
• Schabas, William A. and Shane Darcy, eds. (2005) Truth Commissions and Courts: The Tension Between Criminal Justice and the Search for Truth. Dordrecht: Kluwer Academic.
• Simpson, Gerry. (2007) Law, War and Crime: War Crime Trials and the Reinvention of International Law. Cambridge, UK: Polity Press.
• Sunga, Lyal S. (1992) Individual Responsibility in International Law for Serious Human Rights Violations. Dordrecht: Martinus Nijhoff.
• Watkins, John C., Jr. and John Paul Weber. (2006) War Crimes and War Crime Trials: From Leipzig to the ICC and Beyond—Cases, Materials and Comments. Durham, NC: Carolina Academic Press.
• Werle, Gerhard. (2005) Principles of International Criminal Law. The Hague: T∙M∙ C∙ Asser Press.
• Zahar, Alexander and Goran Sluiter. (2007) International Criminal Law: A Critical Introduction. New York: Oxford University Press.
• Zappalà, Salvatore. (2003) Human Rights in International Criminal Proceedings. Oxford, UK: Oxford University Press.
• Zolo, Danilo (M.W. Weir, trans). (2009) Victors’ Justice: From Nuremberg to Baghdad. London: Verso.

Image: Dame Laura Knight, RA, detail from “The Nuremberg Trial,” 1946, Imperial War Museum.

Cross-posted at ReligiousLeftLaw.com

Islam & Poetry, etc.

Should readers be interested, I have three posts up at a delightful new blog, The Literary Table, introducing the subject of "Islam and Poetry." Please see here, here, and here. Update: the last in the series is here.

The blog's proprietor, who has adopted the pseudonym, Warren Emerson, is soliciting titles for a list of the best works in "Law and Literature:"

What is the single best text that you use in Law and Literature? I would like to issue a call for suggestions and reasons why that particular text best captures your vision for law and literature.

Send me an email at warren[dot]emerson[at]gmail[dot]com and I will post them to the blog.

To Veil or Not To Veil

At the international (and transnational) law and politics blog, Opinio Juris, Julian Ku asks,“Do the Face-Veil Bans Violate International Law?” I hope the short answer is “yes,” but some precedent suggests otherwise so I may be proven wrong.

In my first comment to Julian’s post I wrote: For a pellucid perusal through the relevant issues, please see Ben Saul’s article, “Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols,” Forced Migration, Human Rights and Security, J. McAdam, ed., (Portland, OR: Hart, 2008): 181-212; Sydney Law School Research Paper No. 08/128; Islamic Law and Law of the Muslim World Paper No. 09-56. SSRN: http://ssrn.com/abstract=1292568

One of the comments, by a professor of law at the University of Luxembourg:

An important issue is security. Hold-ups have been committed recently in France by people wearing face-veil, that is covering them from head to feet. It should indeed be clear that it is what the target of the law is: burqas covering women, or whoever is under this cloth, from head to feet, sometimes even with gloves.

In other words, wearing the burqa might be a religious command, but it could be used by anybody to hide, and has been by people who were probably neither women, nor muslims [sic]. And in present times, that is not something you can afford.

To which “david” rightly responded:

That’s brilliant Gilles, a really fantastic point you’ve made, because banning the burqa is surely going to stop bank robbers from covering themselves up. And I suppose we should outlaw wigs too, because although they bring succor to those undergoing chemotherapy, they can also be used to disguise one’s true identity.

Give us a break.

And I could not resist chiming in once more:

Indeed, Halloween masks have been used by not a few criminals here in the states but I’m not aware of any proposed legislation to ban them.

And wearing the burqa or hijab is not a (Quranic) religious obligation (nor an injunction derived from hadith), in fact, it’s safe to say that veiling in general has been transformed by mass media in North America and Europe into a trope for and symbol of “many-things-Muslim” in an ideologically motivated discourse. Hence, and for example, veiling becomes a thinly veiled discourse, say, between Islamists of various sorts and secularists of various stripes (as in both Iran and Turkey in the Islamic world and in France and elsewhere in Europe), one in which the concrete choice of Muslim women from around the world is submerged if not trivialized, and the variegated motley reasons (not all of which are simply and solely ‘religious,’ in fact, some we might rightly characterize as ‘Liberal’ or emancipatory) for veiling are ill-understood or ignored. As one author writes, Among countless other meanings, it [veiling] might make specific statements about a women’s piety, her values regarding sexual modesty, her resistance to Western notions of sexuality, he desire for privacy or mobility in male-dominated environments, or her membership in a political or national movement.

The tradition of veiling and modest dress pre-dates Islam, “acting as a marker of class, faith, ethnicity and age in many cultures.” Veiling is often Quranic in inspiration insofar as modest dress is recommended and veiling is thought to exemplify such modesty for women (the relevant Quranic verses, 24: 30-31, ‘direct both Muslim men and women to dress and interact modestly, and also instruct women not to display their beauty except to their husbands and close relatives’).

When one examines the ostensible reasons for banning ”the veil” one finds them chock full of false assumptions, stereotypes and anxieties and thus success in the endeavor to deny this practice will only serve to prolong and exacerbate religious, cultural and political conflict, at the very least it will do nothing by way of addressing “national security” concerns with terrorism.

Recommended Reading:

• Abu-Lughod, Lila, ed. Remaking Women: Feminism and Modernity in the Middle East. Princeton, NJ: Princeton University Press, 1998.
• Afkhami, Mahnaz, ed. Faith and Freedom: Women’s Human Rights in the Muslim World. Syracuse, NY: Syracuse University Press, 1995.
• Afzal-Khan, Fawzia, ed. Shattering the Stereotypes: Muslim Women Speak Out. New York: Olive Branch Press/Interlink, 2005.
• Ahmed, Leila. Women and Gender in Islam: Historical Roots of a Modern Debate. New Haven, CT: Yale University Press, 1992.
• Avi, Sajida Sultani and Homa Hoodfar, eds. The Muslim Veil in North America: Issues and Debates. Toronto: Women’s Press, 2003.
• Bowen, John R. Why the French Don’t Like Headscarves: Islam, the State, and Public Space. Princeton, NJ: Princeton University Press, 2006.
• El Guindi, Fadwa. Veil: Modesty, Privacy, and Resistance. New York: Berg, 1999.
• Esposito, John L. and François Burgat, eds. Modernizing Islam: Religion in the Public Sphere in Europe and the Middle East. New Brunswick, NJ: Rutgers University Press, 2003.
• Fernea, Elizabeth Warnock and Basima Qattan Bezirgan, eds. Middle Eastern Muslim Women Speak. Austin, TX: University of Texas Press, 1978.
• Haddad, Yvonne Yazbeck and John L. Esposito, eds. Islam, Gender, and Social Change. New York: Oxford University Press, 1997.
• Keaton, Trica Danielle. Muslim Girls and the Other France: Race, Identity Politics & Social Exclusion. Bloomington, IN: Indiana University Press, 2006.
• Khan, Shahnaz. Muslim Women: Crafting a North American Identity. Gainesville, FL: University Press of Florida, 2000.
• Mahmood, Saba. Politics of Piety: The Islamic Revival and the Feminist Subject. Princeton, NJ: Princeton University Press, 2005.
• Mernissi, Fatima. Beyond the Veil: Male-Female Dynamics in Modern Muslim Society. Bloomington, IN: Indiana University Press, revised ed., 1987.
• Mernissi, Fatima. The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam. New York: Perseus Books, 1992.
• Mernissi, Fatima. Women’s Rebellion & Islamic Memory. London: Zed Books, 1996.
• Nouraie-Simone, Feresteh, ed. On Shifting Ground: Muslim Women in the Global Era. New York: The Feminist Press, 2005.
• Ozdalga, Elisabeth. The Veiling Issue, Official Secularism and Popular Islam in Modern Turkey. Richmond, Surrey: Curzon Press, 1998.
• Scott, Joan Wallach. The Politics of the Veil. Princeton, NJ: Princeton University Press, 2007.
• Sedghi, Hamideh. Women and Politics in Iran: Veiling, Unveiling and Reveiling. Cambridge, UK: Cambridge University Press, 2007.
• Shirazi, Fagheh. The Veil Unveiled: The Hijab in Modern Culture. Gainesville, FL: University Press of Florida, 2001.
• Stillman, Yedida K. Arab Dress: From the Dawn of Islam to Modern Times. Leiden: E.J. Brill, 2000.

See too, these posts at IntLawGrrls: The Politics of the Veil, The Values of the Veil, and Politics of the Veil bis.

Update: By way of clarification, I am not in favor of the State enforcing a putative religious requirement for women to “veil,” believing this is a matter of private, free choice on the part of women. And this is in keeping with the Qur’ān (2: 256), which states “There is no compulsion in religion.” Thus, for instance, what occurs in Saudi Arabia, Iran’s imposition of the chador after the 1979 revolution, the Taliban’s imposition of the burqa‘ after their accession to power in 1997, as well as the violent coercion in the name of Islam by non-State actors and groups to “enforce” veiling of one kind or another is contrary to both Liberal principles and the Qur’ān. There’s a nice online treatment of this topic from an enlightened Islamic perspective here and here.

In Celebration of Earth Day

The following poem, “Prayer for the Great Family,” is by Gary Snyder and found in his collection, Turtle Island (New York: New Directions, 1974 ed.), which won the Pulitzer Prize for Poetry in 1975.

Gratitude to Mother Earth, sailing through night and day—
and to her soil: rich, rare and sweet
in our minds so be it.

Gratitude to Plants, the sun-facing light-changing leaf
and fine root-hairs; standing still through the wind
and rain; their dance is in the flowing spiral grain
in our mind so be it.

Gratitude to Air, bearing the soaring Swift and the silent
Owl at dawn. Breath of our song
clear spirit breeze
in our minds so be it.

Gratitude to Wild Beings, our brothers, teaching secrets,
freedoms, and ways; who share with us their milk;
self-complete, brave, and aware
in our minds so be it.

Gratitude to Water: clouds, lakes, rivers, glaciers;
holding or releasing; streaming through all
our bodies salty seas
in our minds so be it.

Gratitude to the Sun: blinding pulsing light through
trunks of trees, through mists, warming caves where
bears and snakes sleep—he who wakes us—
in our minds so be it.

Gratitude to the Great Sky
who holds billions of stars—and goes yet beyond that—
beyond all powers, and thoughts
and yet is within us—
Grandfather Space.
The Mind is his Wife.

so be it.
after a Mohawk prayer

[This was recited at our wedding ceremony on the Summer Solstice, June 21, 1980.]


In further celebration of Earth Day and by way of encouraging considerate and thoughtful reflection and praxis I offer this compilation of titles from a few years ago: Ecological & Environmental Worldviews: A Basic Bibliography.

Please see too The Forum on Religion and Ecology at Yale:

The Forum on Religion and Ecology is the largest international multi-religious project of its kind. With its conferences, publications, and website it is engaged in exploring religious worldviews, texts, and ethics in order to broaden understanding of the complex nature of current environmental concerns.

Freedom to Work

The following is from Jon Elster’s Making Sense of Marx (1985):

“Both the freedom to change employer and the freedom to become an employer oneself give rise to ideological illusions that embody the fallacy of composition. The first is the inference from the fact that a given worker is independent of any specific employer to the conclusion that he is free from all employers, that is independent of capital as such, to the conclusion that all workers can achieve such independence. It might look as if the conclusion of the first inference follows validly from the premise of the second, but this is due merely to the word ‘can’ being employed in two different senses. The freedom of the worker to change employer depends, for its realization, mainly on his decision to do so. He ‘can’ do it, having the real ability to do so should he want to. The freedom to move into the capitalist class, by contrast, only can be realized by the worker who is [to quote Marx] an ‘exceedingly clever and shrewd fellow.’ Any worker ‘can’ do it, in the sense of having the formal freedom to do so, but only a few are really able to.

Hence the worker possesses the least important of the two freedoms—namely the freedom to change employer—in the strongest sense of these two senses of freedom. He can actually use it should he decide to. Conversely, the more important freedom to move into the capitalist class obtains only in the weaker, more conditional sense: ‘every workman, if he is an exceedingly clever fellow…can possibly be converted into an exploiteur du travail d’autrui.’ Correlatively, the ideological implications of the two freedoms differ. With respect to the first, the ideologically attractive aspect is that the worker is free in the strong sense, while the second has the attraction of making him free with respect to an important freedom. If the two are confused, as they might easily be, the idea could emerge that the worker remains in the working class by choice rather than necessity.” (p. 211)

Of course Elster doesn’t address the fact that workers often have little or no real freedom (see below) when it comes to changing employers.

And now for your consideration, several formulations of the concept of exploitation:

[T]o exploit a person involves the harmful, merely instrumental utilization of him or his capacities, for one's own advantage or for the sake of one's own ends.”—Allen Buchanan

“Exploitation [in exchange] demands…that there is no reasonably eligible alternative [for the exploitee] and that the consideration or advantage received is incommensurate with the price paid. One is not exploited if one is offered what one desperately needs at a fair and reasonable price.”—Stanley I. Benn

“Exploitation of persons consists in … wrongful behavior [that violates] the moral norm of protecting the vulnerable.”—Robert E. Goodin

“There are four conditions, all of which must be present if dependencies are to be exploitable. First, the relationship must be asymmetrical … Second, … the subordinate party must need the resource that the superordinate supplies … Third, … the subordinate party must depend upon some particular superordinate for the supply of needed resources … Fourth, the superordinate … enjoys discretionary control over the resources that the subordinate needs from him…”—Robert E. Goodin

“The Upper Big Branch mine was shut down temporarily for safety violations 29 times last year, said Kevin Stricklin, a federal mine safety inspector. Massey was cited for 515 violations at the mine in 2009 and 124 so far this year.”

It’s clear that whatever sanctions Massey faces for these violations they’re seen simply as a necessary (and thus internalized) cost of doing business. “[T]he mine owner, Massey Energy Co., has come under increasing fire for a spotty record of safety operations at Upper Big Branch, including 10 citations this year for inadequate ventilation of explosive gases.”

Setting aside the gratuitously patronizing description (‘scratching his bare belly and sucking on a Marlboro’) of the miner, consider:

Bobby Gray was beat. He’d just worked the nine-hour overnight shift at a coal mine on Seng Creek on Wednesday, and he was due back at 4 p.m. But at least he was alive and safe. “Thank God,” said his wife, Michelle. “I worry every time he goes down in that mine that he won’t come home at the end of his shift.”

Three days after an explosion at the Upper Big Branch mine killed 25 miners, dozens of other mines along the Big Coal River are still running, still sending men deep into the earth to scratch out a living. The deaths of their friends and neighbors stunned other miners here but it didn’t keep them out of the mines. Coal families fear the mines and often resent mine operators, but they know what pays the bills. “There’s nothing else around here,” said Gray, scratching his bare belly and sucking on a Marlboro after napping between shifts. “If I didn’t have this job, we’d be living in a trailer.” [....] Bobby Gray would prefer to work at a union mine. “They have safety reps doing what they’re supposed to do to keep you safe,” he said. But at 4 p.m., he intended to head off to the night shift at the mine on Seng Creek. “I need the work,” he said. [emphasis added]

I doubt Bobby Gray or his co-workers will be seeking the assistance of the National Right to Work organization. On the other hand, they might be receptive to the efforts of union organizers.

Sources (Los Angeles Times):
http://www.latimes.com/news/nationworld/nation/la-na-coal-mine-color8-2010apr08,0,1908717,full.story and
http://www.latimes.com/news/la-na-coal-mine-main8-2010apr08,0,3285951.story?track=rss

(Cross-posted at ReligiousLeftLaw.com)