Books Received: January to March, 2011

Publishers and/or authors kindly sent me the following books during this period:

Analogy & Metaphor: A Select Bibliography and Introduction, Part 2

I've posted at The Literary Table the second half of the installment (that began here Ratio Juris) in which I introduce analogy (Part 1) and metaphor (Part 2) in conjunction with posting of my select bibliography for same. At the end of the essay on metaphor, the list of “References & Further Reading” contains some excellent articles (e.g., by Elisabeth Camp and David Hills respectively) that are not in the original bibliography. Professor Hills is scheduled to pen the entry on metaphor for the Stanford Encyclopedia of Philosophy.

Drug Policy: “Moralization” v. “Therapy”?

In a post at Concurring Opinions, “Drug Policy in the U.S.: A Turn Towards a Pragmatic, Therapeutic Approach?,” Danielle Citron writes:

“The Maryland General Assembly will soon consider House Bill 323 that eliminates mandatory minimum penalties for drug-related offenses, substituting them with maximum penalties. The bill also would expand eligibility for court-ordered drug treatment as an alternative to incarceration. This proposal may seen as part of a broader trend away from criminalization towards more pragmatic therapeutic approaches on as a strategy for drug abusers. But, as Richard Boldt’s thoughtful scholarship suggests (see here, here, and here), the concerns animating drug policy in the United States are complex and anchored in moral judgments that may be difficult to dislodge.

In Boldt’s view…a U.S. turn towards a more pragmatic, therapeutic approach, if it is to occur, must be ‘executed against the inertial force generated by policy commitments and social practices of more than seventy-five years in which the most dominant feature has been an intense moral disapproval of drugs.’ [….] The extreme moral disapproval that has been fixed in this country will likely continue to serve as an ‘anchoring-and-adjustment heuristic’ that ‘filters the complex array of information a pragmatist would want to consider in formulating sensible public policy in this area.’” [….]

What follows are my comments to the post:

There’s much to think about here that is not is amenable to what is tendentiously framed as a drug policy choice between “moralization” and criminalization v. “therapy” and pragmatism, if only because I think a true accounting will find some measure of truth possessed by both (so to speak) the moralists and the therapists. Being on the Left and liberal on most matters, I nonetheless find myself drawn to a perspective brought to this discussion by a thoughtful conservative like Theodore Dalrymple (the pen name of Anthony (A.M.) Daniels, a British writer and retired physician), a former prison doctor and psychiatrist, and author of Romancing Opiates: Pharmacological Lies and The Addiction Bureaucracy (New York: Encounter Books, 2006). Consider, for instance, the following from his book:

“The temptation to take opiates, and to continue to take them…arises from two main sources: first, man’s eternal existential anxieties, to which there is no wholly satisfactory solution, at least for those who are not unselfconsciously religious; and second, the particular predicament in which people find themselves. Modern societies have created, or at least resulted in, a substantial class of persons peculiarly susceptible to what De Quincy calls ‘the pleasures of opium.’”

Dalrymple proceeds to elaborate upon this second source:

“…[I]n most western societies, there is now a class in which tedium vitae is very common, almost normal. This is the class from which the great majority of heroin addicts now comes…. The young of this class are disaffected, and have good reason to be so. They are for the most part poor, though not of course in the absolute sense. On the contrary, they are healthier, better fed, dressed, and sheltered than the great majority of the world’s population, past and present, and dispose of appurtenances whose sophistication would have astonished our forefathers. But they are poor in the context of their own societies (which is what counts psychologically [such ‘relative poverty’ counts in other ways too, as Amartya Sen has recently argued]) and they are so badly educated (this time in the absolute sense) that any historical or geographical comparison, by means of which they might put their poverty in some kind of perspective, is completely beyond them.

They have no interests, intellectual or cultural. The consolations of religion are closed to them. As for their family lives, loosely so-called, it is usually of an utterly chaotic nature…. Their sexual relationships are a kaleidoscope of ephemeral couplings, often with abandoned offspring as a result, motivated by an immediate need for sexual release and often complicated by primitive egotistical possessiveness leading to violence and conflict. Their emotional life is intense but shallow, and their interactions with others governed by power rather than any kind of principle. Life is a matter of doing what you can get away with.

Their economic prospects are poor. They are unskilled in countries in which the demand for unskilled labour is limited. [....] Any work that they do will be repetitive and dull; and while a man might once have derived satisfaction from performing a menial task well, from leading a life of modest usefulness to others, this is not an age when such humility is very common. In large part, this is because people live to a quite unprecedented degree in the virtual world of so-called popular culture. From the very earliest age, their lives are saturated with images of celebrities, whose attainments are often modest but who have been whisked by good fortune into a world of immense and glamorous luxury. This comparison with their own surroundings, squalid if not poor in the literal sense, is not only stark but painful, and is experienced as an open wound into which salt is continually rubbed. It is also experienced as an injustice, for why should people with tastes and accomplishments not so very different from their own lead a life of fairy-tale abundance? The injustice of which they feel themselves to be the victim reduces any lingering inhibitions against causing harm to society, which means in practice individual members of society. Crime ceases to be crime, but is rather restitution or justified revenge. And the fact that the abundance they so desire is itself empty and leads to dissatisfaction and boredom entirely escapes them.

The end result is that, while profoundly dissatisfied with their present lot, they do not have ambitions towards which they might actually work in a constructive fashion, but daydreams, in which every thing is solved at once in a magical way, daydreams from which the emergence into reality is always painful. Any aid to the perpetuation of the state of daydreaming (or reverie, as Coleridge and De Quincy call it) is therefore greatly appreciated.”

Now there’s much I find compelling if not persuasive in this narrative, even if I would have arrived at similar conclusions from integrated post-Freudian and Marxist premises. The point being that a purely therapeutic approach, as such, to the drug problem does not get to the heart of the issue and reminds us why therapeutic acts of “intervention” and “rehabilitation” often fail. The “drug problem” is symptomatic of deeper societal/cultural issues which an “individualist” therapeutic regimen addresses only accidentally or incidentally or haphazardly. And this is not unrelated to the phenomenon of “medicalization” in our society, conspicuous instances of which are treated in The Loss of Sadness: How Psychiatry Transformed Normal Sorrow into a Depressive Disorder (2007) by Allan V. Horwitz and Jerome C. Wakefield, and Christopher Lane’s Shyness: How Normal Behavior Became a Sickness (2007). As Horwitz (above) argues in Creating Mental Illness (2002), our current conceptions of “mental illness as disease” arguably fit only a relatively small number of egregious psychological conditions, and thus most of the conditions we regard as indicative of “mental illness” are cultural constructions (hence subject to the sort of ‘looping effects’ that Ian Hacking has well-described) of either “normal” responses to stressful social circumstances or are simply forms of deviant social behavior. Don’t get me wrong, I’m not a disciple of Thomas Szasz, nor part of any “anti-psychiatry” movement, and I’m especially opposed to faddish Freud-bashing (e.g., Frederick Crews). Indeed, I’m an ardent defender of the virtues of post-Freudian psychoanalytic theory and therapy. And I’ve been sympathetic to if not supportive of the “therapeutic jurisprudence” pioneered by David B. Wexler and the late Bruce J. Winick (see ‘references and further reading’ below). But a purely or even largely therapeutic approach to our drug problem strikes me as woefully inadequate.

Consider, again, this account from Dalrymple’s intimate and seasoned experience as a prison psychiatrist in England. He writes of being little acquainted with the “sudden expansion of opiate addiction” in his city, and that while he briefly ran a drug addiction clinic “in a famous university town,” “[o]piate addiction seemed to me neither important nor interesting:”

“But as more and more addicts came to my attention—when I was on duty in the prison, I would see as many as twenty new cases a day—I began to think about it more. The medical perspective, which coincided with their own, that these people were ill and in need of treatment, seemed to me less and less satisfactory or convincing. The number of drug clinics in the city increased dramatically, as did the amount of medication prescribed to addicts, but far from getting better, the problem only worsened.”

Dalrymple proceeds to describe in disturbing detail the physical and mental condition of the addicts in prison, concluding that

“If any director wanted extras for a film about a concentration camp, he would need to look no further than the daily entrants to British prisons. I used to remark to such young men that if they were released from prison in the condition in which they entered it, everyone would conclude, and rightly, that we were running not a prison but a concentration camp. Therefore, I said, it was only reasonable to conclude that, for them, freedom was a concentration camp; their own desires acted as the concentration camp guards. Badly educated as they were, lacking almost all knowledge of history or interest in current affairs, not a single one of them failed to understand what I meant, and they always laughed; they agreed with what I said. Freedom was bad for them, because they did not know what to do with it.

In fact, the great majority of them stopped taking opiates in the prison, even when they were available. (They were smuggled in by various methods, the most unscrupulous and emblematic of which was the use of little packets of heroin placed in the rectums of babies brought on prison visits by the prisoners’ girlfriends, and which would have killed the babies had they burst. …).

The addicts came into the prison starving and miserable, and went out healthy and happy. Within a few months, however, many of them were back to their former condition, and not a few of them begged the courts, when brought once more before them, to imprison them rather than let them to free. A strange world indeed, in which incarceration is preferable to freedom!”

It seems many of the addicts expressed to Dalrymple a belief more or less in the proposition that finding “a purpose in life was a sufficient condition to enable them to abstain. [….] The addicts themselves…acknowledged that their condition was [loosely and broadly] a spiritual one….”

Hence, the limits of a therapeutic approach, especially one that takes the form of an overly “medicalized” or “disease” (or physiological) response to addiction:

“I soon discovered that the medical services set up to assist addicts took on a technocratic attitude towards them and their problems. They focused on the physiological aspects of opiate addiction, since these were susceptible, at least in theory, to medical intervention, which in practice mean the prescription of a drug rather like the one the addicts were addicted to. And there was a strenuous, almost outraged, rejection of the idea that addiction was, at bottom, a moral problem, or even that it raised any moral questions at all. The addict was to be seen purely and simply as an ill person. And this meant that taking heroin was something that just happened to people rather than something that they did. In the process of turning the addict into a blameless patient, therefore, the doctors, nurses, psychologists, counselors, and social workers also turned an addict into something less than a fully responsible person, into someone not in charge of his own behavior, a creature or automaton effectively without choices, intentions, or even weaknesses. So uncertain of their own benevolence were these functionaries of care that they avoided all mention of the moral and spiritual aspects of addiction, since even to mention them en passant was to risk being perceived as condemnatory and therefore malevolent in intent. [….] Of course, it cannot be denied that opiate addiction has medical consequences, many of them very serious. [….] But medical consequences, however terrible, do not make a disease.”

I can’t do Dalrymple’s book justice here but this should suffice as a taste of the general argument. A similar argument with regard to alcoholism was made by one of my former teachers, Herbert Fingarette, in a controversial but equally important book, Heavy Drinking: The Myth of Alcoholism as a Disease (1988). It turns out that Dalrymple thought so too, for near the end of his work we learn “What Fingarette said of alcoholism can be applied with equal force to opiate addiction,” proceeding to quote a passage from Heavy Drinking in support of his contention that “the addict has a problem, but it is not a medical one: he does not know how to live. And on this subject the doctor has nothing, qua doctor, to offer.” Like both Dalrymple and Fingarette, I suppose I’m a moralist insofar as I’m concerned with the diminution of moral responsibility incarnate in the medicalization of addiction, and this in light (or the shadows) of what we might call mitigating socio-economic and cultural or environmental conditions in which individuals frequently fail to internalize a strong sense of such responsibility or are socialized so as to possess only a thinly attenuated sense of same. And I’m of religious or, better, spiritual suasion in as much as I think that, at bottom, this is in fact a species of that larger subject: “how to live,” and pivots upon questions concerning the “meaning of life.”

Finally, I’ll recommend a work that speaks to many of the issues broached here in a sophisticated and sensitive manner that endeavors to transcend a simple choice between “therapy” and “moralization,” namely, Mike W. Martin’s From Morality to Mental Health: Vice and Virtue in a Therapeutic Culture (2006).

Update (3/22/2011): Danielle has written the following comment to my comments at Concurring Opinions:

Dear Patrick,

Forgive me, but my post must have mislead you into thinking that Professor Boldt framed drug policy in the U.S. and U.K. as clean distinctions between a moral/criminal approach and a therapeutic one. The article offers a far more nuanced exploration of the complex interactions between culture and social practice, positive law and public health policy to get a better handle on how a given society negotiates the moral and practical features of the problem.
I would love your thoughts after you read the piece.

My best,
Danielle

To which, I replied:

Danielle,

I didn’t assume that, but I thought the characterization of the “moral/criminal approach” was clearly pejorative: it’s not “pragmatic” it’s moralistic after all (and that’s always a bad thing among legal realists, i.e., most law profs), “the concerns animating drug policy in the United States are complex and anchored in moral judgments that may be difficult to dislodge” (perhaps such moral judgments are on the mark, even if inchoate or intuitive), “the engine of pragmatic reform will be dragged down by the moral understanding of drug abuse in this country” (again, moral understanding a liability here), and so forth. One might have drawn the inference that a morally-based view of drug policy is by its very nature not pragmatic.

Having read the part where you say “Boldt dispels the notion that ‘the history of drug policy in Britain and the United States served as ‘distinct perfect types, the former a nonjudgmental medical approach and the latter a morally tinged criminal prohibition approach,’ and that, “[i]nstead, the ‘reality likely was somewhat more complex and the similarities between the two more pronounced than might have seemed the case,’” I did not draw the inference “that Professor Boldt framed drug policy in the U.S. and U.K. as clean distinctions between a moral/criminal approach and a therapeutic one.” But the tenor of the post at least allows one to draw the inference that prevailing moral intuitions and judgments about drug use in our society inhibit possible or envisaged reforms and I doubt that is the case. And, in any case, I wanted to highlight the possible shortcomings of a “therapeutic” approach and, indeed, any of the current approaches on offer insofar as they are anchored largely in either “moralization” or “therapy,” failing to appreciate that the “drug problem” is symptomatic of wider and deeper societal problems of the sort Dalrymple mentions and insinuates above and I cited in the last sentence of the penultimate paragraph.

All the best,
Patrick

References and Further Reading:

• Aronowitz, Robert A. Making Sense of Illness: Science, Society, and Disease. Cambridge, UK: Cambridge University Press, 1998.
• Bolton, Derek and Jonathan Hill. Mind, Meaning, and Mental Disorder: The Nature of Causal Explanations in Psychology and Psychiatry. New York: Oxford University Press, 2nd ed., 2003.
• Cassell, Eric J. The Nature of Suffering and the Goals of Medicine. New York: Oxford University Press, 2nd ed., 2004.
• Dalrymple, Theodore. Romancing Opiates: Pharmacological Lies and the Addiction Bureaucracy. New York: Encounter Books, 2006.
• Elster, Jon. Strong Feelings: Emotion, Addiction and Human Behavior. Cambridge, MA: MIT Press, 1999.
• Elster, Jon, ed. Addiction: Entries and Exits. New York: Russell Sage Foundation, 1999.
• Elster, Jon and Ole-Jørgen Skog, eds. Getting Hooked: Rationality and Addiction. Cambridge, UK: Cambridge University Press, 1999.
• Fingarette, Herbert. Heavy Drinking: The Myth of Alcoholism as a Disease. Berkeley, CA: University of California Press, 1988.
• Graham, George. Disordered Mind: An Introduction to Philosophy of Mind and Mental Illness. New York: Routledge, 2010.
• Hacking, Ian. Mad Travelers: Reflections on the Reality of Transient Mental Illness. Cambridge, MA: Harvard University Press, 1998.
• Hacking, Ian. Rewriting the Soul: Multiple Personality and the Sciences of Memory. Princeton, NJ: Princeton University Press, 1995.
• Hacking, Ian. Historical Ontology. Cambridge, MA: Harvard University Press, 2002.
• Healy, David. The Creation of Psychopharmacology. Cambridge, MA: Harvard University Press, 2002.
• Healy, David. Let Them Eat Prozac: The Unhealthy Relationship Between the Pharmaceutical Industry and Depression. New York: New York University Press, 2004.
• Horwitz, Allan V. Creating Mental Illness. Chicago, IL: University of Chicago Press, 2002.
• Horwitz, Allan V. and Jerome C. Wakefield. The Loss of Sadness: How Psychiatry Transformed Normal Sorrow into Depressive Disorder. New York: Oxford University Press, 2007.
• Lane, Christopher. Shyness: How Normal Behavior Became a Sickness. New Haven, CT: Yale University Press, 2007.
• Martin, Mike W. From Morality to Mental Health: Virtue and Vice in a Therapeutic Culture. New York: Oxford University Press, 2006.
• Mirowsky, John and Catherine E. Ross. Social Causes of Psychological Distress. New York: Aldine de Gruyter, 2nd ed., 2003.
• Murphy, Dominic. Psychiatry in the Scientific Image. Cambridge, MA: MIT Press, 2006.
• Radden, Jennifer, ed. The Philosophy of Psychiatry: A Companion. New York: Oxford University Press, 2004.
• Sadler, John Z. Values and Psychiatric Diagnosis. New York: Oxford University Press, 2005.
• Thornton, Tim. Essential Philosophy of Psychiatry. New York: Oxford University Press, 2007.
• Wexler, David B. Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice. Durham, NC: Carolina Academic Press, 2008.
• Wexler, David B. and Bruce J. Winick, eds. Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press, 1996.
• Winick, Bruce J. Therapeutic Jurisprudence Applied: Essays on Mental Health Law. Durham, NC: Carolina Academic Press, 1996.
• Winick, Bruce J. and David B. Wexler. Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham, NC: Carolina Academic Press, 2003.

[cross-posted at ReligiousLeftLaw.com]

Sharī‘ah: Toward a Philosophically Sensitive Introduction

The following is the latest draft of my introductory essay on Sharī‘ah, revised yet again in the interest of precision and clarity.

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 or 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. Fiqh involves the human process of understanding and implementing the divine law or revelation (wahy), and thus is at least one remove from the latter inasmuch as it is the corpus juris developed by the various legal schools, individual jurists and judges in the Islamic tradition. It is a serious (religious, epistemological, ontological, ethical…) yet common mistake to conflate Sharī‘ah and fiqh, or to use these terms interchangeably or as synonyms, particularly when we appreciate the metaphysical or theological nuances of the former concept apart from its positivization through the rituals and laws in the Islamic world throughout history.

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.’ Thus Sharī‘ah is by definition always fair, just and equitable, whereas fiqh might be described as the all-too-human attempt at approaching, through positive law, the ‘ideals and purposes’ of Sharī‘ah (maqāsid al-Sharī‘ah). ‘The conceptual distinction between Sharī‘ah and fiqh is the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God’ (Abou El Fadl). The metaphysical and theological function of Sharī’ah is, in some respects at least, analogous to that of Natural Law theory and formulations among the Stoics and later religious and secular Natural Law doctrine as it developed from Aquinas, Grotius, and Pufendorf (we may in fact be dealing with more than an analogy here: cf. Anver M. Emon’s Islamic Natural Law Theories, 2010). As described by the legal theorist Mark Murphy, natural law in general is ‘the view holds that (1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings. Further, it holds that (4) the good is prior to the right, that (5) right action is action that responds nondefectively to the good, that (6) there are a variety of ways in which action can be defective with respect to the good, and that (7) some of these ways can be captured and formulated as general rules.’

As several scholars have pointed out, there’s been a tendency among both Muslims and Orientalists in the modern and post-modern periods to ‘overlegalize’ Sharī‘ah, and thus Hashim Kamali rightly observes: ‘It is questionable whether Islam was meant to be as much of a law-based religion as it is often made out to be.’ With regard to Islamic spirituality, Sharī‘ah in the first instance is concerned with (1) faith in God (īmān), (2) the five pillars of praxis (al-arkān al-khamsah), and (3) the manner of worshipping God (‘ibādāt, or ‘devotional matters’). Sharī’ah is also said to be concerned with the protection and promotion of ‘five essentials’ (al-daruriyāt), namely, life, religion, property, intellect and family. These ‘five essentials’ are what in natural law theory is referred to as ‘basic goods,’ and different natural law theorists, from Aquinas in the Middle Ages to Mark Murphy and John Finnis (Catholic natural law philosophers) today, likewise have lists of ‘basic goods’ natural law is designed to protect and promote. For example, the goods Aquinas mentions are ‘life, procreation, social life, knowledge, and rational conduct,’ and Finnis cites ‘life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion.’ It’s clear there’s some overlap here with the basic values and goods found in the Islamic tradition.

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.’ While perhaps formulated too much in ‘Protestant’ terms insofar as it appears to ignore theological and long-standing exegetical and hermeneutic constraints on the range of ‘legal’ interpretations, and while virtually if not wholly eliminating a necessary role for Islamic religious authority(ies), it enables us to appreciate the fact that any legal system or positivization of Islamic law is liable to a principled (and thus reasoned) and ‘transcendental’ critique insofar as human law(s) never fully embodies or instantiates justice, goodness, or God’s will. 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’ as it is understood at that time and that place by any particular individual.

On this understanding, the function of Sharī‘ah is not unlike a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (1993) or as discussed in the philosophical writings of Iris Murdoch (especially in The Sovereignty of Good (1970) and Metaphysics as a Guide to Morals (1992)); keeping in mind that Murdoch takes the trouble to distinguish Plato’s conception of the Good from the theist’s God):

‘The Good is distant and apart, and yet it is a source of energy, it is an active principle of truthful cognition and moral understanding in the soul, the inspiration and love-object of Eros. It is not a logical universal, or a person, it is sui generis. It is a ‘reality principle’ whereby we find our way about the world.’

Intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Both Platonic Forms and the Sharī‘ah are fairly indeterminate and utopian, while nonetheless serving as normative, intuitive, and largely nonpropositional foundations (in theory at least, 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 or the Good or God’s will, and all of which endeavor to approach Justice (or the Good or God’s will), succeeding by degrees (analogous if not related to the manner in which virtue ethics views our capacity for self-understanding in conjunction with perfectibilist psychological and moral growth). Norman Calder has suggested 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, translated in spiritual, religious, legal and political terms. Such understanding is necessarily partial and fallible and, outside of prescribed religious obligations and modes of worship, 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 morally—or politically and legally speaking—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 or constitutional formulation 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 both animates and 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 and represent our current understanding and embodiments of divine law. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic and metaphysical 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) as well as conscientious Muslims 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‘ah. 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 and solely 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‘ah.

That said, consider the following comments from Professor Haider Ala Hamoudi, a self-described ‘legal realist,’ from his blog ‘Islamic Law in Our Times: A Realistic Assessment of Islamic Law in Today’s World’ (http://muslimlawprof.org/), as it helps us see the difference between acknowledgment of and concern for the distinction between the conceptual, metaphysical and theological, on the one hand, and focus on the ‘empirical’ (Hamoudi’s ‘realism’) on the other, and that the failure to maintain the distinction results in a troubling conflation of the ‘normative’ and the ‘descriptive:’

‘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.’

Well, yes…and no. It’s no doubt necessary and important to describe precisely how people in fact are interpreting and using Sharī‘ah in legal and political contexts. But we should carefully consider the following argument of An-Na‘im, which implicitly acknowledges the aforementioned conceptual and theoretical distinction between divine law and human law (and religiously inspired or motivated good governance and public policy), and thus there always exists the possibility of principled and arguable perception of a religious and moral gap between what is the case and what ought to be the case, a possible perception that is, in the end, the prerogative of all Muslims in their capacity as individuals:

‘When observed voluntarily, Sharī‘a 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‘a 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‘a. 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‘a is necessary for legitimizing and implementing the principles and institutions of constitutionalism, human rights, and citizenship in Islamic societies.’ (An-Na‘im 2008)

What is at issue here is the nature of what has come to be called siyāsah shar‘iyyah, or the endeavor to develop the implications of Sharī‘ah with regard to the pursuit of justice and good government (or more broadly, governance), precisely the point at which the understanding of Sharī‘ah comes into contact with questions of democratic theory and praxis, and basic human rights. On this topic, we’ll 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‘ah and democratic theory and praxis or human rights, even though, historically, this has not been the case. As Kamali explains, ‘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.’ And it is in light of this comprehensive conception that we can with some confidence claim there exists no necessary contradiction between Sharī‘ah and democratic theory and praxis, the very argument made by Noah Feldman, beginning with his book, After Jihad: America and the Struggle for Islamic Democracy (2004) and most recently in The Fall and Rise of the Islamic State (2008). The following is a summary of points made by Kamali on behalf of this 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 meaning of 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. (Kamali 2008b)

References & Further Reading:

• Abdel Haleem, M.A.S., trans. The Qur’an. Oxford, UK: Oxford University Press, 2004.
• Abou El Fadl, Khaled. Speaking in God’s Name: Islamic Law, Authority and Women. Oxford, England: Oneworld, 2001.
• Abou El Fadl, Khaled, et al. Islam and the Challenge of Democracy. Princeton, NJ: Princeton University Press (A Boston Review Book), 2004.
• Abrahamov, Binyamin, ed. Islamic Theology: Traditionalism and Rationalism. Edinburgh: Edinburgh University Press, 1998.
• 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: Negotiating the Future of Shari‘ah. Cambridge, MA: Harvard University Press, 2008.
• Al-Azmeh, Aziz, ed. Islamic Law: Social and Historical Contexts. London: Routledge, 1988.
• Al-Azmeh, Aziz. Islams and Modernities. London: Verso, 2nd ed., 1997.
• Baderin, Mashood A. International Human Rights and Islamic Law. New York: Oxford University Press, 2003.
• Black, Anthony. The History of Islamic Political Thought: From the Prophet to the Present. New York: Routledge, 2001.
• Brown, L. Carl. Religion and State: The Muslim Approach to Politics. New York: Columbia University Press, 2000.
• Calder, Norman. Studies in Early Muslim Jurisprudence. Oxford, UK: Clarendon Press, 1993.
• Cook, Michael. Commanding Right and Forbidding Wrong in Islamic Thought. Cambridge, UK: Cambridge University Press, 2000.
• Coulson, Noel J. Conflicts and Tensions in Islamic Jurisprudence. Chicago, IL: University of Chicago Press, 1969.
• Dupret, Baudouin, ed. Standing Trial: Law and the Person in the Modern Middle East. London: I.B. Tauris, 2004.
• Dupret, Baudouin, Barbara Drieskins and Annelies Moors, eds. Narratives of Truth in Islamic Law. London: I.B. Tauris, 2008.
• Emon, Anver M. Islamic Natural Law Theories. New York: Oxford University Press, 2010.
• Enayat, Hamid. Modern Islamic Political Thought. Austin, TX: University of Texas Press, 1982.
• Esposito, John L. and John O. Voll, eds. Islam and Democracy. Oxford, UK: Oxford University Press, 1996.
• Fakhry, Majid. Ethical Theories in Islam. Leiden: E.J. Brill, 1991.
• Feldman, Noah. After Jihad: America and the Struggle for Islamic Democracy. New York: Farrar, Straus, Giroux, 2003.
• Feldman, Noah. The Rise and Fall of the Islamic State. Princeton, NJ: Princeton University Press, 2008.
• Griffel, Frank. Al-Ghazālī’s Philosophical Theology. New York: Oxford University Press, 2009.
• Haj, Samira. Reconfiguring Islamic Tradition: Reform, Rationality and Modernity. Stanford, CA: Stanford University Press, 2009.
• Hallaq, Wael B. Authority, Continuity and Change in Islamic Law. Cambridge, UK: Cambridge University Press, 2001.
• Hallaq, Wael B. A History of Islamic Legal Theories: an introduction to Sunnī usūl al-fiqh. Cambridge, UK: Cambridge University Press, 1997.
• Hallaq, Wael B. An Introduction to Islamic Law. Cambridge, UK: Cambridge University Press, 2009.
• Hallaq, Wael B. Sharī’a: Theory, Practice, Transformations. Cambridge, UK: Cambridge University Press, 2009.
• Hashemi, Nader. Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies. New York: Oxford University Press, 2009.
• Hashmi, Sohail H., ed. Islamic Political Ethics: Civil Society, Pluralism and Conflict. Princeton, NJ: Princeton University Press, 2002.
• Hefner, Robert W., ed. Remaking Muslim Politics: Pluralism, Contestation, Democratization. Princeton, NJ: Princeton University Press, 2005.
• Hourani, George F. Reason and Tradition in Islamic Ethics. Cambridge, UK: Cambridg University Press, 1985.
• Al-Jazīrī, ‘Abd al-Rahmān (Nancy Roberts, trans.). Islamic Jurisprudence According to the Four Sunni Schools, Vol. 1: Modes of Islamic Worship. Louisville, KY: Fons Vitae, 2009.
• Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence. Cambridge, UK: The Islamic Texts Society, revised ed., 2000.
• Kamali, Mohammad Hashim. The Right to Life, Security, Privacy, and Ownership in Islam. Cambridge, UK: Islamic Texts Society, 2008a.
• Kamali, Mohammad Hashim. Shari’ah Law: An Introduction. Oxford, England: Oneworld, 2008b.
• Khadduri, Majid. The Islamic Conception of Justice. Baltimore, MD: Johns Hopkins University Press, 1984.
• Kurzman, Charles, ed. Liberal Islam: A Sourcebook. Oxford, UK: Oxford University Press. 1998.
• Kurzman, Charles, ed. Modernist Islam, 1840-1940: A Sourcebook. New York: Oxford University Press, 2002.
• Leaman, Oliver. An Introduction to Classical Islamic Philosophy. Cambridge, UK: Cambridge University Press, 2nd ed., 2001.
• Leaman, Oliver, ed. The Qur’an: An Encyclopedia. New York: Routledge, 2005.
• March, Andrew F. Islam and Liberal Citizenship: The Search for an Overlapping Consensus. New York: Oxford University Press, 2009.
• Martin, Richard C. and Mark R. Woodward (with Dwi S. Atmaja). Defenders of Reason in Islam: Mu‘tazilism from Medieval School to Modern Symbol. Oxford, UK: Oneworld, 1997.
• Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Press, 3rd ed., 1999.
• McAuliffe, Jane Dammen, ed. The Encyclopedia of the Qur’an, 5 Vols. Leiden: E.J. Brill, 2001-2006.
• Murphy, Mark. “The Natural Law Tradition in Ethics,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.) http://plato.stanford.edu/archives/fall2008/entries/natural-law-ethics/.
• Nasr, Seyyed Hossein, ed. Islamic Spirituality I: Foundations. New York: Crossroad, 1987.
• Peters, Rudolph. Islamic Criminal Law: Theory and Practice from the Sixteenth to the Twentieth Century. Cambridge, UK: Cambridge University Press, 2005.
• The Qur’an (Tarif Khalidi, trans.). New York: Viking/Penguin, 2008.
• Renard, John. Seven Doors to Islam: Spirituality and the Religious Life of Muslims. Berkeley, CA: University of California Press, 1996.
• Rosen, Lawrence. The Anthropology of Justice: Law as Culture in Islamic Society. Cambridge, UK: Cambridge University Press, 1989.
• Rosen, Lawrence. The Justice of Islam: Comparative Perspectives on Islamic Law and Society. Oxford, UK: Oxford University Press, 2000.
• Sachedina, Abdulaziz. The Islamic Roots of Democratic Pluralism. Oxford, UK: Oxford University Press, 2001.
• Sachedina, Abdulaziz. The Role of Islam in the Public Square: Guidance or Governance?Amsterdam: Amsterdam University Press, 2006.
• as-Sadr, Muhammad Bāqir (Roy Mottahedeh, trans.). Lessons in Islamic Jurisprudence. Oxford, UK: Oneworld, 2003.
• al-Sadr, Muhammad Bāqir (Arif Husain, trans.). Principles of Islamic Jurisprudence According to Shi‘i Law. London: Islamic College for Advanced Studies Press, 2003.
• Saeed, Abdullah. Interpreting the Qur’ān: Towards a Contemporary Approach. New York: Routledge, 2005.
• Sajoo, Amyn B. Muslim Ethics: Emerging Vistas. London: I.B. Tauris, 2004.
• Sajoo, Amyn B. Muslim Modernities: Expressions of the Civil Imagination. London: I.B. Tauris, 2008.
• Souaiaia, Ahmed E. Contesting Justice: Women, Islam, Law, and Society. Albany, NY: State University of New York Press, 2008.
• van Ess, Josef (Jane Marie Todd, trans.). The Flowering of Muslim Theology. Cambridge, MA: Harvard University Press, 2006.
• Vikør, Knut S. Between God and the Sultan: A History of Islamic Law. New York: Oxford University Press, 2005.
• Weiss, Bernard G. The Spirit of Islamic Law. Athens, GA: University of Georgia Press, 1998.
• Zubaida, Sami. Law and Power in the Islamic World. London; I.B. Tauris, 2003.
  

Mass Media: Politics, Political Economy & Law—A Select Bibliography

The topic of our next bibliography in the Directed Reading series is titled “Mass Media: Politics, Political Economy & Law.”* What follows below is a brief introduction.

“A media system set up to serve the needs of Wall St. and Madison Avenue cannot and does not serve the needs of the preponderance of the population.”

“[We should be concerned about] the concentration of media ownership, the hypercommercialization of culture, the decline of journalism, the globalization of the corporate media system and its relationship to the the neoliberal global economy, the corrupt nature of U.S. policy-making, the collapse of public service broadcasting, and the tragic evolution of the First Amendment into a tool for the protection of corporate privilege.”

“Those who think technology can produce a viable public democratic sphere by itself where policy failed to do so are deluding themselves.”
—Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times. New York: The New Press, 2000.

* * *

“In any large society, the mass media constitute probably the most crucial institutional structure of the public sphere. To be self-governing, people require the capacity to form public opinion and then to have that public opinion influcence and ultimately control public ‘will formation’—that is, government law and policies. For these purposes, a country requires various institutional structures. The media, like elections, constitute a crucial sluice between public opinion formation and state ‘will formation.’ The mass media, like elections, strive to mediate between the public and the government. For this reason, a country is democratic only to the extent that the media, as well as elections, are structurally egalitarian and politically salient.”

“[The ‘democratic distribution principle’ of communicative power] implies as wide as practical a dispersal of [such] power within public discourse.”

“[T]he central justification for the constitutional status of free speech is captured not by the marketplace metaphor but rather by a commitment to respect individual liberty.”

“Abstract economics predicts that the Internet’s dramatic reduction of distribution costs will generate two simultaneous, but curiously opposing consequences for media content. Which, if either, of these two effects will dominate may well depend on legal policy as well as on people’s preferences and technological development. First is a simple diversity or ‘abundance effect.’ Reduced costs of getting content into an audience member’s hands (or before her eyes) is likely to lead more people to create and offer potentially more diverse content to the public. That is, reduced distribution costs lower a significant barrier into the commercial content market. Equally important, reduced delivery costs can enable a democratic increase in opportunities for noncommercial and voluntary noncommodified content creators. [….]

Second is a more complicated logic of potential ‘concentration effect.’ Any decline in delivery and copy costs intensifies the economic incentive to use (more) resources in making a more widely appealing first copy. [….] The increased expenditures on first copies, as long as they do not necessitate a higher consumer price, tend to concentrate the audience on these ‘better’ products.”

“[B]logging and related Internet forms of communication are an increasingly important phenomenon. It would be a huge mistake to understate their potential contribution to the robustness of a democratic political sphere—to people’s capacity to participate either as speakers or recipients of diverse content. However, unsurprisingly the data suggest that extreme concentration apparently exists in the blog world. In any event, blogs’ present or potential valuable role in the communications order may not reduce the reasons to object to [economic] concentration in the traditional news and entertainment (or cultural) media. [….] [Blogs may ‘greatly enrich the communications order’] not by substituting for the crucial roles served by traditional media but rather by embodying greater participation in a public sphere. They also may have a positive impact on traditional media—sometimes scooping them, giving them new story lines that these traditional media find worth pursuing…and making these traditional media more accountable.”
—C. Edwin Baker, Media Concentration and Democracy: Why Ownership Matters. Cambridge, UK: Cambridge University Press, 2007.

* * *

“[‘Media frames’] are principles of selection, emphasis and presentation composed of little tacit theories about what exists, what happens, and what matters.”
—Todd Gitlin, The Whole World is Watching: Mass Media in the Making and Unmaking of the New Left. Berkeley, CA: University of California Press, 2nd ed., 2003.

* * *

“[The U.S. media] permit—indeed encourage—spirited debate, criticism and dissent, as long as these remain faithfully within the system of presuppositions and principles that constitute an elite consensus, a system so powerful as to be internalized largely without awareness.”
—Edward S. Herman and Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass Media. New York: Pantheon Books, 1988.

* * *

Propaganda (definition): “The organized attempt through communication to affect belief or action or inculcate attitudes in large audiences in ways that circumvent or suppress an individual’s adequately informed, rational reflective judgment.” —Randal Marlin, Propaganda and the Ethics of Persuasion. Peterborough, Ontario: Broadview Press, 2002.

Addendum to bibliography:
Davenport, Christian. Media Bias, Perspective, and State Repression: The Black Panther Party. Cambridge, UK: Cambridge University Press, 2010.

Dunsky, Marda. Pens and Swords: How the American Media Report the Israeli-Palestinian Conflict. New York: Columbia University Press, 2008.

*[I'm grateful to Steve Shiffrin for suggestions for this compilation.]

Analogy & Metaphor: A Select Bibliography and Introduction, Part 1

The subject of our latest bibliography in the Directed Reading series concerns analogy and metaphor. I’ll introduce these respectively in two posts, the first here treats analogy and analogical reasoning.

Perhaps it’s a commonplace observation, but I’ll reiterate it in any case: evidence for analogical reasoning is ubiquitous in the (natural and social) sciences and the humanities, in fact, it is integral to, when not prominent alongside, other forms of everyday practical and theoretical reasoning found in academic and public fora alike, as well as in the intimate contexts of everyday life. With regard to the latter, Holyoak and Thagard point out that “[y]oung children, before they enter school, without any specialized tutoring from their parents or elders, develop a capacity for analogical thinking,” indeed, they go so far as to claim the “analogical mind is simply the mind of a normal human being.”[1] The canonical philosophical tradition in the West has reluctantly and only occasionally accorded explicit recognition to the fact that such reasoning is, in the words of Baggini and Fosl, “both powerful and important.”[2] Yet no less than Hume gave voice to a proposition that motivates one of the more fruitful research agendas in cognitive psychology: All our reasonings concerning matters of fact are founded on a species of Analogy.” But of course the significance of analogy is not confined to “matters of fact,” for it readily extends into fiction, the imaginary, and the rarefied realms of philosophy itself, if only because “analogies make it possible for us to engage our imaginations in philosophical thought,” for while it is often “hard to get a grip on abstract ideas such as truth or reality…people can easily relate to cities, ships, celestial objects and cave dwellers,” these being well-known “source” analogues from Plato.[3]

Recent research in cognitive science and philosophy has clarified constraints operative in analogical reasoning (e.g., similarity, structure and purpose) and the apparent “mental leap” that traverses the conceptual and representational gap between “the source” (the familiar, or what we ‘know’) and the “target” (the novel, or what we are seeking to ‘make sense of’) analogues.[4] The history of science itself can be mined for a wealth of examples that demonstrate the repeated, wide, and varied “use of analogy in building scientific theories,” suggesting we delineate a path from “analogical thinking to the core of human creativity.”[5] The late physicist and philosopher of science John Ziman argued, “Even the most austerely ‘scientific’ models operate through analogy and metaphor.”[6] Whether or not it is true that “All knowledge is ultimately rooted in metaphorical (or analogical) modes of perception and thought,”[7] as the early Nietzsche appears to have believed, it borders on intellectual irresponsibility to ignore the embarrassment of riches found in recent works on analogy and metaphor in cognitive science and philosophy.

We now turn, in a highly abstract and stylized fashion, to the topic of analogy and law. Analogical arguments are especially prominent in Anglo-American jurisprudence,* in particular and especially with adjudication by precedent (stare decisis), the defining feature of common law legal reasoning.[8] Stare decisis (L., ‘to stand by things decided’) is the doctrinal practice of applying precedent(s) (cases: originally an adjective, hence ‘precedent case,’ now used largely as a noun: ‘a precedent’) in the adjudication of later cases (disputes). This means a court is bound to follow “the point” or principle or rule of law arrived at in prior adjudication. In the first instance, this determination of law becomes, in some sense binding (closer to a literal sense in English law, fairly loosely in American law, especially with regard to constitutional law) on all other courts of equal or inferior ranking in its jurisdiction (‘vertical constraint’). Precedent arises from the broad body of common law, and in particular, from case law (cf. statutory law or legislation, constitutional law, and administrative law), the latter being the collection of published cases in a given jurisdiction. Classical common law judges did not subscribe to an explicit doctrine of stare decisis, for it was not to become a full-fledged doctrine in the common law before the 18th century, although the seeds of stare decisis were long sown in the soil of the common law.

Reference to precedent is made when it is said that a case is “on—” or “in point,” synonymous with being apposite, applicable, or germane to the “instant” case, i.e., the case presently before the court. For a case to serve as precedent there should be a clearly ascertainable ratio decidendi (L., ‘the reason for deciding’), holding, rule or principle of law on which the court’s decision is based, and behind which, lie reasons: outlined loosely, (and ideally) in argument form. This is a normative “rationality constraint” (of which a principle of coherence is part) that compels the court to give a “reasoned” account for its legal determination or ruling or “holding” in the case. In short, a precedential case is a vehicle for a rule or principle (or standard) that has (or may have) holding in (‘fits’) the case before the court. Determination of precedent also involves “professional discourse concerning the precedent, changes in social propositions and doctrine after the precedent was decided, and the judgment of the deciding court concerning what rule would be most socially congruent and systematically consistent.”[9] Dictum, actually, obiter dictum (pl. dicta) refers to a nondispositive—that is, not precedential—comments made in the course of the majority’s opinion, although in practice “the ratio decidendi and obiter dicta often blur into one another” (Neil Duxbury). While the latter is typically thought to be tangential to the holding in the instant case, it may later be accorded persuasive value in legal argumentation and/or future decisions; in other words, it may eventually attain the status of ratio decidendi.

In contrast to their English counterparts, American judges have more discretionary power to bypass or otherwise disregard constraining or binding precedent (‘relaxed’ v. ‘strict’ stare decisis): “Whenever the substantive reasoning in a case seems at all dubious the case must go through a period of evaluative trial before it can be regarded as settled and therefore valid law.”[10] An appellate opinion short of unanimity or even a clear majority is dubbed a “plurality opinion,” which may be sufficient reason for an American judge to once more disregard otherwise binding precedent (a plurality opinion nonetheless has ‘persuasive value’ which means that, while in principle it is defeasible, it should not be ignored or dismissed out of hand). Another reason for declining to defer to precedent may be the belief (there may be less generous ways of characterizing this) that the prior case will likely (i.e., there is a high probability that it will) be overruled on appeal to a higher court. This is called “anticipatory overruling” (i.e., anticipating the higher court will overrule the cited precedent). As Atiyah and Summers warn us, widespread adoption of this—so to speak—avoidance rationale would prove highly corrosive to stare decisis.

Even the “binding” character of precedent must be qualified in the English case, as we see in the following summary of Lord Denning’s discussion by E.W. Thomas:

“Binding it may be, he states, but there are always ways and means of getting around a previous decision that is wrong. It may be distinguished by finding some minor distinction on the facts, or on the law, which, although minor, will ‘serve its turn.’ Another means is by ‘pouring cold water’ on the reasoning in the previous case; for example, by saying that it was too widely stated, or that the judges cannot have had such cases as this in mind. Or, Lord Denning can depart from a previous decision by simply saying that things are different now that equity and law are fused.”[11]

Antecedent to the full-fledged doctrine of judicial deference to precedent was the belief common to English and French royal courts that like cases should be treated, hence decided, alike. In application, this is known as the principle of consistency, and is at the same time a formal principle of equality (a property of Rawlsian ‘formal justice’), although we still depend on criteria for determination of the relevant likeness(es) and difference(s). Reliance on this principle contributes to the structural integrity of the legal system. Cass Sunstein cites the consequent triune virtues of “fostering planning, maintaining predictability, and protecting expectations” as integral to the belief that the law is, after all, a certain way.[12] In addition, legal arguments made in the context of precedent strive to incarnate the virtues or principles associated with epistemic coherence for ascertaining the truth or falsity of legal propositions. Finally, as “law-and-economics” practitioners are quick to remind us, resort to precedent ideally economizes on time for all the relevant parties. Another way to make this point is to view, with Duxbury, the reliance on the default role or presumptive rule of precedent in the law as resembling the mental economy achieved with cognitive heuristics.

The attempt to instantiate the principles of consistency and equality implicates legal practitioners (arguably, it turns out) in analogical reasoning because, of course, no two cases will ever be identical in all respects. However, the most conspicuous “difficulty with constraint by analogy is that every case is analogous to every other case in some ways and disanalogous in other ways.”[13] Or so it seems. But this way of putting the problem is insensitive to the manner in which analogical argument in (and outside) the law is subject to operative constraints which, while not leading to anything like deductive certainty, need not leave us floundering in sheer indeterminacy. Analogical reasoning is suggestive, plausible, and presumptive—and often persuasive, even if it is not conclusive (i.e., determinative) in a rigorous deductive or formal sense. It is employed in the context of legal rules, doctrinal standards, and sundry legal principles and community values that help to narrow the scope of indeterminacy when reasoning analogically. It has an ineluctable “open-texture” that makes it more, or less, persuasive. What counts in analogical comparison is, within limits, inherently contestable. According weight or salience to the items of an analogy is necessarily an evaluative process in part dependent upon normative judgments and growing out of background rules, standards, principles, and theories. However, reference to a norm “beyond” the facts of the case is still in implicit reference to those facts, accounting for disparate or competing analogies but not rendering them solely or exclusively the product of idiosyncratic value preference or the bias of prior theory selection (even ‘fact finding’ is dependent on the exercise of judicial discretion: in the words of E.W. Thomas, ‘[facts] must be probed, discerned, extracted, and weighed from a mass of evidence, often poorly organised’). After all, the question time and again is the proper “fit” (coherence) with the facts, such that theory or values or principles can never be singularly or entirely dispositive. Rather, and perhaps roughly, something like Rawls’ “reflective equilibrium” may be at work here, which is indeed the claim made by Sunstein, and perchance the only way one can save his depiction of analogical reasoning from vicious circularity (for Larry Alexander, no such salvation is possible). Cass Sunstein claims that the principle or rule which “accounts for results in the source and target cases” is discovered in the process of analogical reasoning itself, but this seems hopelessly confused if not viciously circular (reflective equilibrium being ‘virtuously circular’): analogical reasoning cannot get started without a “governing idea,” yet that governing idea (or rule or principle) does not exist “until we have assessed the cases” (emphasis added).[14] Keep in mind, however, that it is likely that one reasons analogically in conjunction with or alongside other forms of reasoning (syllogistic and otherwise) in which proper fit or coherence is a minimal desideratum. Like the doctrine of precedent itself, analogical reasoning involves the simultaneous reliance on constraints and the exercise of discretion (even here, as E.W. Thomas makes clear with regard to the doctrine of precedent, such discretion is bounded by ‘internal’ and ‘external’ constraints).

While a deciding court is strictly bound (vertically constrained), stare decisis does not require the court to follow the precedent of coequal, autonomous courts, or of lower courts within the same system, or of any courts outside the jurisdiction. And yet the deciding court is free to consider cases from other courts authoritative (the court of last resort if you will), in other words, to freely bind itself.[15] A prima facie case of precedent may be “distinguished” if the court finds the earlier decision addressed an issue in some respect or on the whole different from the case at hand. Or some characterization of the facts may cause it to be distinguishable or significantly different from the instant case to exempt it from the constraint of precedent. In addition, finding a case distinguishable can be a roundabout way of circumventing outdated or otherwise unsound precedent. Inconsistent distinguishing may reflect a rational (i.e. with ‘good reason’) stepwise strategy of a court toward the (provisional) goal of overruling, as succinctly explained here by Melvin Eisenberg:

“It may sometimes be best for courts to move to the best rule in steps, even at
the price of inconsistency during the transition. A court may properly decide that if it is uncertain how given conduct should be treated, it may give effect to its uncertainty by carving out only a portion of the conduct for special treatment, on a provisional basis, provided the line it carves out is rationally related to the court’s purpose. For example, a court may believe that a doctrine is not normatively justified and yet may not be confident that its belief is correct. The court may then properly draw an inconsistent distinction as a provisional step toward full overruling. Alternatively, a court may properly formulate an exception at a level of generality below that necessary for the exception to be fully principled, as a provisional step toward full generality.”[16]

This is an altogether remarkable practice by the court that well illustrates several phenomena first discussed by Jon Elster in Ulysses and the Sirens: Studies in Rationality and Irrationality (1984) wherein man is metaphorically characterized as a “globally maximizing machine” (in contrast to the ‘locally maximizing machine’ evidenced in the theory of natural selection) that employs “waiting and the use of indirect strategies [as] crucial features of human choice.”[17] In this case, waiting akin to “investment” in economics, which exemplifies a “global maximization that requires bypassing a local maximum: one step backwards in order to take two steps forwards.” I think we might fairly characterize the practice of “inconsistent distinguishing” as an indirect strategy akin to investment in which case it is viewed as prima facie “irrational.” By all appearances (from outside looking in as it were) the court is behaving irrationally (i.e., its inconsistent distinguishing), i.e., the “step backwards,” but only in order for it later—after the waiting period—to possess the capacity to articulate a new rule or move “two steps forward.” Here, the admission of ignorance or “uncertainty” does not result in a myopic or a-theoretical incrementalism, as the court implicitly or explicitly entertains the “big picture” or long-term view when articulating its decision, a picture that perchance only members of the court are privy to. The court is relying on a stepwise strategy through inconsistent distinguishing, but in this instance its eyes are looking up or ahead, as opposed to down, at the very next step: short-term (prima facie) inconsistency is the price paid for indirectly approaching the long-term regulative ideals of consistency and coherence, among the prominent an fundamental rational principles of stare decisis. The practice of precedent thus artfully combines some of the features one associates with traditional or Burkean-like conservatism (e.g., presumptive weight with tradition and a gradualist approach to social change) with the progressive orientation of classical liberalism (e.g., due consideration of changing circumstances or new ‘social propositions’).

To overrule precedent the court must be in a superior position in the legal system or at least equal to it in authority. And yet, while the California Supreme Court, for example, is precedentially constrained by its previous decisions (‘horizontal constraint’), it may still (with reason…) overrule itself, provided the precedent is thought to “be wrong and also mischievous to a certain degree of gravity.”[18] Deference to past decisions or the binding constraints of the doctrine of stare decisis serves to save the courts (or judges) from the exercise of unfettered discretion on the one hand, and from having to decide every case de novo or afresh on the other.

Perhaps inspired by the growing number of cognitive and computer scientists and philosophers seeking to model or map analogical reasoning across the myriad fields of intellectual inquiry, legal theorists and philosophers of law have begun to address the comparatively “impoverished understanding” of the “logical form” (i.e., linguistic, semantic, and pragmatic) and “rational force” of analogical reasoning or the use of analogies in reasoning from judicial precedent. Analogies are employed in both inductive reasoning and deductive inferences, although they are clearly dependent on broader legal principles and values, making manifest contributions to the aforementioned “coherence” of legal reasoning and the structural integrity of the rule (or system) of law. In common law legal arguments, for example, “analogies that work as justifications do so because of the way they instantiate the implementation of some general legal principle that cover both (or all) cases.”[19] Furthermore—and relatedly—as Neil MacCormick reminds us, analogies “are relevant to what judges call ‘developing the law,’ that is extending or restating a legal rule or principle to make it cover or show how it covers, novel situations of a kind that Joseph Raz calls ‘unregulated cases.’”

To explore a bit more deeply the use of analogy in precedential legal reasoning I’m going to draw upon Neil Duxbury’s illuminating discussion in The Nature and Authority of Precedent (2008). As Duxbury explains, “to follow a precedent is to draw an analogy between one instance and another; indeed, legal reasoning is often described—by common law lawyers at least—as analogical or case-based reasoning.”[20] To be sure, “[n]ot all instances of analogy drawing…are instances of precedent following.”[21] Prior to the development of the doctrine of stare decisis in the English common law tradition, precedent was often thought to exemplify proper legal reasoning wherein judgments endeavored to exhibit “constancy and consistency,” broadly construed, within the law as a whole. Analogical reasoning is here part and parcel of the “artificial” or cultivated reason of Coke and Hale, for such reason was—and remains—the fruit of “study and experience of the law over a long period of time.”[22] This is precisely the sort of rationality soon disparaged (unfairly I think) by Hobbes in postulating the superiority of “natural reason,” in other words, the sort of reason that in the first instance is the moral and political prerogative of the sovereign, and only derivatively or by implication entrusted to judges to exercise on the sovereign’s (and thus the subjects’) behalf: “For in the acts of Judicature,” writes Hobbes, “the Judge doth no more but consider, whither the demand of the party be consonant with naturall reason, and Equity; and the Sentence he giveth, is therefore the Interpretation of the Law of Nature….” While Hobbes’s natural law reasoning is axiomatically grounded, as Sharon Lloyd has well argued, in “the reciprocity theorem of reason” (which ‘articulates the primary constraint in Hobbes’s moral and civil philosophy on the justifiability in reason of actions’),[23] the “artificial reason” cherished by the likes of Coke and Hale and exemplified in common law reasoning would come historically to entrench the centrality of analogy—in cases, and as a form of reasoning—in stare decisis. As I find the historical narrative compelling, I’ll quote at length from Duxbury’s account:

“The standard of law reporting improved in the nineteenth century not only because the activity became steadily more professionalized, and eventually institutionalized, but also because the development of the Pitman shorthand system in the 1830s made it possible for reporters to reproduce judicial opinions more or less verbatim. By the mid nineteenth century, law reporting had become accurate to the point that reporters would customarily send judges transcripts of their oral arguments for approval and correction. The fact that reporters were generally replicating the ipsissima verba of the judges would most likely have contributed to the fortification of stare decisis; for a prior decision in an analogous case is likely to be less easy to ignore or even distinguish if the reasons informing that decision are presented clearly, in their entirety, and with the approval of the judges who articulated them. The introduction of the hierarchical system of appellate courts under the Judicature Acts of 1873-75 further helped to consolidate the doctrine of precedent, for, once this system was established, judges looking to earlier analogous decisions for guidance could be constrained by the status of the precedent-setting court rather than by the quality of its reasoning alone. [….] The doctrine of stare decisis did not come about because of the creation of a hierarchy of courts, even though the introduction of that hierarchy did much to consolidate it. The doctrine evolved, rather, primarily because the shift to post-verdict arguments made reasoned judgments more visible and significant, and because gradual improvements in law reporting (including headnote writing) ensured that, in general, such judgments were carefully documented and the key points of reasoning easily identifiable. For counsel, seeking judicial precedent became a matter of searching for an analogous earlier decision, reached by an appropriate court, based on reasoning which, if considered persuasive by the court deciding the current case, would probably guarantee a ruling in their client’s favour. The authority of precedents came to be understood, and valued, as sources of reason, not merely as rulings, in materially identical cases.”[24]

In The Nature of the Common Law (1988), Melvin Eisenberg persuasively argued that reasoning by analogy is,

“At its core…the mirror image of the process of distinguishing. In distinguishing a court normally begins with a rule, announced in a prior case that is in terms applicable to the case at hand, and then determines that there is good reason to treat the case at hand differently. The court therefore reformulates the announced rule (or what is the same thing, formulates an exception) that requires the two cases to be treated differently. In reasoning by analogy, the court normally begins with a rule, announced in a prior case, that is not in terms applicable to the case at hand, and then determines that there is no good reason to treat the case at hand differently. The court therefore reformulates the announced rule (or, what is the same thing, formulates a new rule) in a way that requires the two cases to be treated alike.”[25]

Reformulating a rule or formulating a new rule frequently entails, as Eisenberg notes, a consistent extension or generalization of an existing rule, the court having determined “that the statement of the announced rule in the relatively narrow form r, rather than in the relatively general form R, was or has become adventitious.”[26] Eisenberg illustrates this with a rule that existed prior to the nineteenth century in which a husband could bring suit for alienation of his wife’s affections by a third person. The question of why a wife did not suffer a legal injury when her husband’s affections had been alienated was quickened when the law changed allowing married women to sue in their own name. Now

“the question had to be faced whether a wife suffered a legal injury if her husband’s affection had been alienated. In Bennett v. Bennett [116 N.Y. 584, 23 N.E. 17 (1889)] the New York court held that she did suffer such an injury because applicable social propositions did not support treating a wife differently from a husband for this purpose.”[27] [….] In effect, the court concluded that the rule that a husband could bring an action for alienation of affections (rule r) should be deemed only a special case of the more general rule that a spouse could bring such an action (rule R). …[T]he rule must be reformulated by generalizing from husbands to spouses, so that it covers both the precedents and the case at hand.”[28]

Eisenberg concludes, like Duxbury after him, that analogical reasoning is a prominent and unavoidable feature of stare decisis. Analogical reasoning in the common law therefore plays a role in furtherance of doctrinal stability and systemic coherence, it instantiates the principle that like cases be treated alike, advances the values and principle of replicability and, therefore, predictability and planning. And in the end, of course, it is not precedent per se that is (or should be) binding, but the persuasive or substantive reasoning—the ratio decidendi—that animates it, that adds up to a case on point. What is important here is that both distinguishing and overruling require the giving of reasons, thus departure from precedent itself “might be considered evidence that the precedent has some authority, for explicit departure from a precedent invariably entails an explanation” (Duxbury). The simple picture we’ve sketched here might be filled in or made a bit more complex by considering the interactions, say, between common law and constitutional law, or common law and statutory and/or regulative law, but these complications should not undermine the basic framework of the picture itself.

*Analogy, or qiyās, is also very important in Islamic law, but that deserves a separate treatment on another occasion.

Postscript: For a more thorough analytical examination of this topic, see Grant Lamond’s entry in the Stanford Encyclopedia of Philosophy on “Precedent and Analogy in Legal Reasoning.” E.W. Thomas’s chapters 6 and 7, “The Piety of Precedent,” and “The Foibles of Precedent” respectively in his book, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005), are indispensable for explaining the shortcomings of any formal theory asserting the absolutely or strongly binding character of precedent. Neil Duxbury’s The Nature and Authority of Precedent (2008) seems to me the definitive treatment of the subject to date, artfully combining historical discussion with philosophical analysis in a way that enables us to fully appreciate precisely how and why “the value of the doctrine of precedent…rests in its capacity simultaneously to create constraint and allow a degree of discretion.” Properly employed, I think the same could be said about analogical reasoning in the law.

After assembling this bibliography I learned of a promising book that proffers “the first systematic normative theory of analogical arguments in many years,” namely, Paul Bartha’s By Parallel Reasoning: The Construction and Evaluation of Analogical Arguments (New York: Oxford University Press, 2010). At the publishers website we read that “In elaborating the connection between analogy and…broad epistemic principles, By Parallel Reasoning offers a novel contribution to explaining how analogies can play an important role in the confirmation of scientific hypotheses” in particular, and more generally, that it seeks “to formulate and justify the standards for the critical evaluation of analogical arguments.”

Notes:

[1] Keith J. Holyoak and Paul Thagard (1997), “The analogical mind,” American Psychologist, 52: 35-44. Available: http://cogsci.uwaterloo.ca/Articles/Pages/Analog.Mind.html
[2] Julian Baggini and Peter S. Fosl, The Philosopher’s Toolkit: A Compendium of Philosophical Concepts and Methods (Malden, MA: Blackwell, 2003), p. 47.
[3] Ibid., p. 46.
[4] Keith J. Holyoak and Paul Thagard, Mental Leaps: Analogy in Creative Thought (Cambridge, MA: MIT Press, 1995).
[5] Ibid., p. 12.
[6] John Ziman, Real Science: What it is, and what it means (Cambridge, UK: Cambridge University Press, 2000), p. 149.
[7] David E. Leary, ed. Metaphors in the History of Psychology (Cambridge, UK: Cambridge University Press, 1990), p. 2.
[8] See, for example, Scott Brewer, “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy,” 109 Harvard Law Review 923, March 1996, and Dan Hunter, “Reason is Too Large: Analogy and Precedent in Law,” 50 Emory Law Journal 1197 (Fall 2001). Cf. Larry Alexander and Emily Sherwin’s skeptical (or ‘eliminativist’) argument that “so-called analogical reasoning does not contribute in a meaningful way to judicial decision-making,” in their book, Demystifying Legal Reasoning (Cambridge, UK: Cambridge University Press, 2008), p. 118. I cannot here attempt a rebuttal of this argument so suffice to say I think they’re mistaken, all the same, I do think they’re right in more modestly contending that “purely analogical decision making [in law] does not exist” [emphasis added].
[9] Melvin Aron Eisenberg, The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988), p. 51.
[10] P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law (Oxford, UK: Clarendon Press, 1987), p. 120.
[11] E.W. Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge, UK: Cambridge University Press, 2005), p. 133.
[12] Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford, UK: Oxford University Press, 1996), p. 76.
[13] Larry Alexander, “Precedent,” in Dennis Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Malden, MA: Blackwell, 1996), p. 509.
[14] Sunstein, pp. 65-66.
[15] On self-binding mechanisms generally, see Jon Elster, Ulysses Unbound (Cambridge, UK: Cambridge University Press, 2000).
[16] Eisenberg in Peter Benson, ed., The Theory of Contract Law: New Essays (Cambridge, UK: Cambridge University Press, 2001), p. 217.
[17] Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge, UK: Cambridge University Press, revised ed., 1984).
[18] Larry Alexander in Patterson (see n. 12 above), p. 512.
[19] Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (New York: Oxford University Press, 2005), p. 211.
[20] Neil Duxbury, The Nature and Authority of Precedent (Cambridge, UK: Cambridge University Press, 2008), p. 2.
[21] Ibid.
[22] Ibid., p. 49.
[23] The “reciprocity theorem:” “If one judge another’s doing of an action to be without right, and yet does that action oneself, one acts contrary to reason. That is, to do what one condemns in another is contrary to reason.” Hobbes believed this to be a faithful application of the Golden Rule found in the New Testament, and Lloyd appears not to disagree with this, but the Golden Rule is not reducible to a principle of reciprocity, even if it frequently is seen as exemplifying same. See, first, Lloyd’s brilliant and boldly original interpretation of Hobbes’s moral and political thought in Ideals as Interests in Hobbes’s Leviathan: The Power of Mind over Matter (Cambridge, UK: Cambridge University Press, 1992), and Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (Cambridge, UK: Cambridge University Press, 2009). As to the reasons why the Golden Rule is not equivalent or reducible to the (Hobbesian), or a reciprocity principle, see Duxbury’s article, “Golden Rule Reasoning, Moral Judgement and Law,” 84 Notre Dame Law Review (2009): 1529-1605, and Anna Wierzbicka’s discussion in What Did Jesus Mean? (New York: Oxford University Press, 2001), pp. 191-202.
[24] Duxbury, 2008: pp. 55-57.
[25] Eisenberg, The Nature of the Common Law, p. 87.
[26] Ibid.
[27] Ibid., p. 88.
[28] Ibid., p. 89.

Humanitarian (i.e., military and/or otherwise) Intervention in Libya? (Updated through March 9, 2011)

I’ve brought this back to the front of the blog owing to several updates.

Tom Hayden argues “Obama should tell Qaddafi to go:”

“Rarely, if ever, do I advocate U.S. intervention in the affairs of other nations. But President Obama should be supported if he calls for Libya’s Muammar el-Qaddafi to step down and asks the United Nations to intervene, if necessary.

There are two criteria that matter to me. The first is whether the leader in question is unleashing official violence against a popular movement, as was the case in China during Tienanmen, Chile’s armed forces against Salvador Allende, and Mexico during the Tlotelcolco massacre when U.S. strategic partnerships outweighed the value of human rights. The second is taking the opportunity to clear the name of the United States after decades of being sullied by spending our tax dollars and reputation on murderous regimes.

An immediate declaration that the Libyan regime has gone too far, coupled with a call for global support of the Libyan resistance, will have a serious impact on the balance of forces and be long remembered when people, including our own children, ask which side we were on during this rising of the Arab nation. Declaring such a principle – that the U.S. will not support dictators and monarchs who open fire on their own people – should be the guide to policy in other countries in the weeks ahead.

President Obama is quoted as seeing in the Egyptian revolution an opportunity for an alternative narrative to that of al Qaeda, that peaceful mass democratic uprisings are possible against Arab dictatorships. Here is his chance to prove it.”

There’s a nice (and a bit more nuanced) discussion of the issues and options regarding “humanitarian intervention” at the Jadaliyya blog by Asli Bali and Ziad Abu-Rish here.

Steve Negus has also weighed in on the question of intervention at The Arabist.

And now Issandr El Amrani adds his thoughts at The Arabist as well.

At Slate, Shadi Hamid appears to dismiss the possible problems and blowback effects of intervention in arguing that it is

“time for bold, creative policy-making. For starters, NATO should quickly move to enforce a no-fly zone over Libya, both to send a strong message to the regime and to prevent the use of helicopters and planes to bomb and strafe civilians. The United States and European allies should freeze the assets of senior Libyan officials and consider other targeted sanctions. Meanwhile, the international community should also let it be known that any individuals involved in perpetrating atrocities will be prosecuted before the International Criminal Court, while regime figures who defect to the opposition will be granted amnesty.”

Further reading in the relevant literature (alas, those entrusted with unenviable task of making timely decisions about such matters don’t have the luxury to read this material at present but one would hope at least some of them are familiar with the arguments contained therein):

First, for a principled discussion of humanitarian intervention from the perspective of philosophy of law and legal theory, see Allen Buchanan’s book (specifically, ‘humanitarian intervention’ in the index), Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004). And then:

· Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
· Chatterjee, Deen K. and Don E. Scheid, eds. Ethics and Foreign Intervention. Cambridge, UK: Cambridge University Press, 2003.
· Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. New York: Oxford University Press, 2001.
· Fletcher, George P. and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press, 2008.
· Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
· Greenwood, Christopher. Humanitarian Intervention: Law and Policy. Oxford, UK: Oxford University Press, 2001.
· Harriss, John, ed. The Politics of Humanitarian Intervention. London: Pinter, 1995.
· Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, UK: Cambridge University Press, 2003.
· Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues. Orchard Park, NY: Broadview Press, 2003.
· Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Ardsley, NY: Transnational, 3rd ed., 2005.
· Welsh, Jennifer M., ed. Humanitarian Intervention and International Relations. New York: Oxford University Press, 2004.

I’m acquainted with, and therefore partial to, the titles written or edited by Chatterjee, Chesterman, Holzgrefe and Keohane (which has a chapter by Buchanan), and Jokic.

If, as Juan Cole has posted today at Informed Comment, it is true that 90% of Libya is in the hands of the rebels (I’m uncertain as to how he arrived at this figure, as it is not based on the article from the Los Angeles Times he cites), I’m skeptical about the more vigorous proposals for (i.e., some form or forms of direct military) intervention.

Updates: Helena Cobban prefers an “incapicitation mission” to a “decapitation mission.”

And (2/27/2011), Jonathan Wright sensibly argues that the “U.S. also needs to show some self-restraint:”

“It’s a very bad idea for the United States to intervene in Libya and I have no doubt that no one credible in the Libyan opposition will accept such an offer. ‘We’ve been reaching out to many different Libyans who are attempting to organize in the east and, as the revolution moves westward, there as well. I think it’s way too soon to tell how this is going to play out, but we’re going to be ready and prepared to offer any kind of assistance that anyone wishes to have from the United States,’ said Secretary of State Hillary Clinton. The last thing any Arab rebellion (and that is what we have in Libya) needs is the kiss of death that any association with the United States would bring. If the US administration is reacting to domestic pressures, as it did in the case of its decision to veto the UN Security Council resolution on Israeli settlements, then it should resist the temptation. Even the vague offer could do damage. Who is giving advice to these US officials, and what is driving them?”

At Jadaliyya, Ayça Çubukçu is worried about the prospects of UNSC sanctioned intervention in Libya, the larger argument with the axiomatic premise that the “UN Security Council does not have [the] authority speak in the name of humanity or the international community.”

March 3, 2011: “The Libyan Conundrum: Don’t let him linger,” at The Economist:

[....] “It is vital for the lengthy and difficult reconstruction of Libya that Libyans themselves depose Colonel Qaddafi. The idea of putting Western soldiers’ boots on Libya’s sandy soil is thus still out of the question. But a no-fly zone could save thousands of Libyan lives, just as an earlier one saved Kurds in Iraq. Even then, it is fraught with technical difficulties, it cannot fully protect the Libyan rebels against Colonel Qaddafi’s machinegunners and it is liable to ‘mission creep’ (see article).

That makes it still more important for international involvement to have the backing of the Arab and Muslim world, especially the section of it that stands for progress and justice. This test is less clear-cut than it might be. The 22-member Arab League is in mealy-mouthed disarray; its secretary-general, Amr Moussa, is himself bidding to become Egypt’s next president. The autocrats of the Gulf, especially in Saudi Arabia, are looking askance at the democratic upheavals all around them. Moreover, the Libyan situation is so fluid that no one knows which leader or what coalition of political forces may come to the fore or win legitimacy in the global arena. Among Libya’s opposition, most people, though by no means all, seem ready to accept Western help.

As in all such mind-bending crises, it is best that the UN Security Council validates whatever course is pursued by the world’s beefiest governments, still inevitably led by the West, which, in turn means the United States, backed by Britain and France, its hardiest allies with a modicum of military muscle. The Americans are fearful of becoming embroiled in yet another distant venture. Among the Europeans, only Britain and Italy seem readier for a more robust involvement (see Charlemagne). China and Russia, though they voted for UN sanctions on Colonel Qaddafi in the Security Council, presently balk at a no-fly zone, let alone armed intervention by troops. Turkey, a key member of NATO in Mediterranean or Middle Eastern affairs, is so far dead against, too. So, for the time being, it seems, are the majority of Arab governments.

But if the Libyan regime starts killing people in their thousands—and especially if it uses helicopter gunships or aircraft—diplomatic reluctance should melt away. Too often the world has dithered open-mouthed as evil men have slaughtered Darfuris or Rwandans with impunity. Outsiders, led by the UN, must help Libya’s emerging transitional councils with humanitarian aid. The UN Security Council may yet have to be persuaded to restore peace by invoking the ample power of Chapter VII. And if that proves unattainable, the widest possible coalition of the willing, ideally including Libya’s Arab neighbours, must protect Libyan civilians by arming the opposition and defending them from aerial attack.”

March 7: See Kenneth Anderson at Opinio Juris.

And more to my own tastes, Richard Falk argues against the growing bipartisan tide in congressional quarters and elsewhere among Beltway politicians and pundits for intervention, particularly in the form of a “no-fly zone:” “Will We Ever Learn? Kicking the Intervention Habit.”

I agree with Allen Buchanan’s argument in Justice, Legitimacy, and Self-Determination...(2004) that “under certain conditions a willingness to violate existing international law for the sake of reforming it [analogous to the use ‘civil disobedience’ in municipal law] can be not only consistent with a sincere commitment to the rule of law, but even required by it.” It follows, for example, that we might explore the “possibility of developing a rule-governed, treaty-based regime for humanitarian armed intervention that bypasses the UN Charter-based law.” But Buchanan importantly qualifies his proposal by emphatically reminding his readers that

“[v]iolations of fundamental rules of existing international law, such as the prohibition of preventive war and against any use of force that does not qualify as self-defense and lacks Security Council authorization, are irresponsible, unless they are accompanied by a sincere effort to construct superior international legal structures to replace those they damage or render obsolete.” [emphasis added]

It is just this condition, namely, “the sincere effort to construct superior international legal structures” that I think is conspicuously lacking today and thus makes Falk’s argument all the more persuasive.

March 8: At EJIL: Talk! Stefan Talmon has a provocative post asking, “Could the International Court of Justice Indicate a ‘No-Fly Zone’ over Libya?” It’s worth a careful read, as Talmon first concedes that

“Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action by NATO or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.”

As an alternative, Talmon comes up with a legal argument based on the “prevention of genocide,” asking,

“Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?

In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007), the ICJ held that States parties to the 1948 Genocide Convention are under an obligation ‘to employ all means reasonably available to them, so as to prevent genocide so far as possible’ (para. 430). The content of the obligation varies greatly from one State to another and depends, inter alia, on

‘the capacity [of the State] to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide’ (ibid.).” [….]

Of course determining whether genocide has occurred, is occurring, or is quite likely to occur would appear to be extremely difficult under conditions of civil war in Libya. The legal scenario sketched by Talmon strikes me as unlikely but no less deserving of careful consideration insofar as it could conceivably be a part of the deliberate and larger legal strategy that endeavors, as Buchanan says above, “to construct superior international legal structures to replace those they damage or render obsolete.” Those skeptical of such things, might still want to entertain it as a useful thought-experiment.

A comment to the Talmon’s post by Gbenga Oduntan, however, I thought worthy of full reprint as it reinforces the bulk of Falk’s argument above. Oduntan is author of the forthcoming volume, Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for Spatial Delimitation (New York: Routledge, 2011). While Oduntan does not directly address the merits of Talmon’s specific argument, he does critique the controversial plans for a no-fly zone as illegal under international law, at least those plans under consideration to date by the British, although as we’ve seen, it’s not just the British contemplating the imposition of a no-fly zone over Libya [I’ve made a few minor proof-reading corrections]:

“The British Foreign Secretary William Hague has recently expressed the view that this option of the no-fly zone could be implemented without the authorisation of the UN Security Council. It appears that British military commanders based at the Permanent Joint Headquarters (PJHQ) in Northwood in the northwest of London are indeed presently embarking on detailed plans to impose a no-fly zone. Such a plan will involve the deployment of Typhoon jets to RAF Akrotiri in the British Base areas of Cyprus. The likelihood of the plans going ahead calls for the following comments The significance of writing this piece cannot be lost in this same year that the public has come to learn through the Chilcot Enquiry that politicians have been known to clearly ignore legal advise by the highest law officers of the land and to lean on them to change their legal opinion to fit preconceived political aims.

The issues raised by the imposition of a no-fly zone over an independent state such as Libya are of immense international legal significance and must not be treated with levity. They include possible violations of settled international legal principles that grants right of sovereignty to every state, territorial sovereignty and jurisdiction, sovereign equality, self defence, aerial trespass and perhaps aggression.

The UN Charter states explicitly in Article 2 that the Organization is based on the principle of the sovereign equality of all its Members. Article 2 (4) also provides that ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ International law, therefore, operates upon the principle that each sovereign has absolute power and control over all persons biological or juridical within its territory, it therefore follows that relationships of dominance, subjugation or subordinations cannot be allowed to legitimately exist between independent states.

No fly zones particularly in the manner envisaged by the present government would directly conflict with the provisions and principles of the Chicago Convention (1944), which is the most important codification landmark in Air Law to date. The Convention states:

‘Article 1: The contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory.
Article 2: For the purposes of this convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.’

It will be observed that the recognition of complete and exclusive sovereignty granted in Article 1 applies to ‘every state.’ In other words, it is not confined to only contracting states. It is, therefore, of universal importance. The principle of complete and exclusive sovereignty over the superincumbent airspace by the underlying state is unassailable. An old authority on air law Seara Vazquez in his book Cosmic International Law correctly concluded that ‘airspace is that part of space subject to the sovereignty of a state.’

The usual known violations of this settled principle comes in the form of advent of outright military hostilities between states whereupon aerial raids into foreign territory occur. There may also be deliberate incursions into national airspace where states are contesting a boundary or territorial sovereignty over a piece of territory such as in the long standing situation between Cyprus and Turkey. It is also possible that indeliberate incursion into foreign territory may occur due to unexpected events known as force majeure or out of sheer navigational error.

Flights maintained in pursuance of a no-fly zone are, however, very unique, sui generis and highly controversial. The origins of the no-fly zone device are thought to lie in the use of colonial power and in the forceful perpetuation of colonial control. The earliest recorded uses of air power in this way occurred between the two World Wars by the British Royal Air Force (RAF) in air control operations over Somaliland, Mesopotamia, and Aden. At that time, the Royal Air Force used air power to enforce colonial rule, ensure unmolested travel and sanctity of trade routes, and generally maintain control among the population in the region. There are, however, essential differences between these operations and the concept and operations of the no-fly zones developed in the last decade of the 20th century. For instance, the affected peoples of that era had no air forces, no air defences and no sovereignty. Perhaps more importantly the sophisticated treaties of air law including the Chicago Convention had not been created and were not in force. During the Falklands war in 1982, the British armed forces imposed a total exclusion zone in the airspace of their area of operations in the south Atlantic. However, this involved the application of force from all elements of military power – air, sea, and land and occurred mainly over disputed territory. Not until the end of the Gulf War in 1991 did no-fly-zones assume their expanded, modern form.

It is increasingly becoming clear that derogation from the rule that states have complete state sovereignty in their airspace in the form of imposition of no-fly zones is a creation of the political imagination of a select few western military powers -USA, Britain, and France. The most recent uses of this controversial device are the series of so-called no-fly zones enforced against Iraq in its territorial airspace nearly continuously since the Persian Gulf War in 1990.

The legality of the no-fly zones has always been questioned by legal writers particularly those from the developing states but including those states which originally stood against the invasion of Kuwait by Iraq, the facts of which led to the first Persian Gulf war. Immediately after the United States and the allied forces liberated Kuwait, there was allegedly tremendous protest within Iraq. The Iraqi government was alleged to have responded with brutality on the Kurdish Iraqis in the North, on the Shia Muslims in the South and there were tremendous humanitarian difficulties. The United States through its major western allies –Britain and France engineered the creation of these zones through a circuitous route. The allied powers relied upon a UN resolution, Resolution 688, which essentially demanded that Saddam Hussein must stop repressing his own people. The resolution itself interestingly enough never mentioned the creation of no-fly zones. The position advanced by the Western powers was that essentially the best way to make good on this resolution is to deny the Iraqi government the ability to fly planes over large areas of its own country. The zones were delineated in the North in the spring of 1991and in the South in the summer of 1992.

The UK Defence Committee of the House of Commons rationalised the existence of the no-fly zones thus:

‘…the UK is making a valid contribution to stability in the Gulf, protecting the minority people of Iraq from Saddam Hussein and containing Iraq’s ability to threaten its neighbours…. We have no doubt that UK participation in the no-fly zone operations over Iraq is justified on moral and humanitarian grounds…. We welcome in particular the Committee’s recognition that military action is only ever undertaken in response to direct threats from Iraqi forces against coalition aircrew carrying out their humanitarian patrols. The Government remains satisfied that the no fly zones are legally justified as a measure to prevent a humanitarian crisis.’

In reality no-fly zones are not as harmless as they at first appear to the uninformed. The propensity of no-fly zones to lead to war and destruction of lives is proven. The activity of U.S. and British aircraft in the so-called no-fly zones over Iraq led to dozens of severe military conflicts with Iraqi air and ground forces. During the flyovers over Iraqi national territory, missile-bomb strikes were launched at Iraqi forces and sometimes at civilian targets. In December 1998 alone this allegedly resulted in 420 military casualties. Over a thousand civilians were also wounded. The argument that derogation from Iraqi state sovereignty was justifiable on humanitarian grounds rings hollow given the manner in which life and property of Iraqi people had been endangered and destroyed. Moreover, it will appear that politics rather than humanitarian considerations accounted for this creation considering that no UN resolution, treaty or agreement specifically authorised the creation or maintenance of no-fly zones over sovereign state territory.

It is noted that the present British government has argued that its plans to impose no-fly zones are legal in and of themselves and do not require appropriate UN resolutions. Not enough has been said about the grounds upon which the government holds this opinion. In the nature of things the bases for such action are likely to be made up ex post facto after the scheme has started and with the implications of such action already being played out. It is notable that this is not the first time British governments have held this belief. It is, however, the first time since the creation of the UN that it does so without any form of prior and directly relevant Security Council resolution. United Nations resolution against the state it intends to impose or join in the imposition of no-fly zones on.

In a clear sense, therefore, what the UK government plans to do is to impose its own laws, standards, morals or ideas about political leadership on another independent state, albeit one experiencing domestic crisis, while pressing the device of the no-fly zones to the advantage of its preferred factions in a domestic crisis. It may be recalled that when the so-called allied nations imposed no-fly zones over Iraq they were not claiming to do so in Iraqi airspace so as to implement or impose their own national laws. A maximum of three states took part in the direct implementation of the no-fly zones. They also purported to be acting in furtherance of international laws including possibly UN Security Council resolutions. It is notable that on this occasion only the UK has openly considered this option and the Americans have in fact dissociated themselves from the move and stated that military intervention might be counterproductive. [I’m not sure this last statement still holds.]

The erstwhile Secretary of State for Defence Geoff Hoon, in the House of Commons (Hansard, 26 February 2001), while relying on humanitarian justification betrayed the need to link even such justifications with multilateral UN agreement when he stated that: ‘In terms of humanitarian justification, we are entitled to patrol the no-fly zones to prevent a grave humanitarian crisis. That is the legal justification in international law. It does not rest on Resolution 688, although that Resolution supports the position we have adopted’ (HC Deb 26 February 2001 vol 363 cc 620-34). The added problem, therefore, with the current plan is that it cannot rely even indirectly to any appropriately worded resolution of equal providence such as Resolution 688.

In essence a no-fly zone significantly detracts from the right of independence of a state to independence within its territory. A territorial state ought to have unfettered access to all parts of its own territory following the usual tridimensional application of territorial jurisdiction –underground and into the earth’s centre, its surface and its airspace. Territorial states are also entitled to a tridimensional monopoly of violence within national territory, subject of course to applicable humanitarian considerations. This is probably encapsulated in the submission of Henri Lefebvere in The Production of Space that

‘Sovereignty implies “space,” and what is more it implies a space against which violence, whether latent or overt, is directed –a space established and constituted by violence…. Every state is born of violence, and state power endures only by virtue of violence directed towards a space…. A founding violence, and continuous creation by violent means (by fire and blood, in Bismarck’s phrase)—such are the hallmarks of the state.’

This is also supported by Stuart Elden’s latest work on Terror and Territory: The Spatial Extent of Sovereignty. He advises that ‘The control of territory is what makes a state possible. Thus, control of territory accords a specific legitimacy to the violence and determines its spatial extent. Those in control of territory—states—can act in ways those not in control cannot.’ The exercise of any form of violence in the sphere of tridimensionality of a sovereign state by another state is prima facie an affront to that state’s sovereignty just as much as if an entire brigade of guards invades its territory in a dawn advance. The potentials for escalation of disputes caused by policing no-fly zones is patently clear to the extent that a state that does not act or does not act quickly in reaction to blatant acts of aerial trespass becomes even more vulnerable to domestic criticism especially from political rivals and the general populace. In other words, there is an incentive for the embattled government to become even more draconian towards the beneficiaries of the cover that the no-fly zone is supposed to provide. The World Court has also expressed clear jurisprudence against the view that somehow a violation of a state’s airspace is less egregious an act than a violation of any part of its borders. The Military and Paramilitary activities in and against Nicaragua case brought by Nicaragua against the United States, confirmed the erga omnes (non-derogable) nature of the prohibition of violation of national airspace especially where war has not been declared among states. The court noted that respect for State sovereignty, in international law is closely linked with the principles of the prohibition of the use of force and of non-intervention:

‘[T]he basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2. paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on International Civil Aviation (Art. 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. That convention, in conjunction with the 1958 Geneva Convention on the Territorial Sea, further specifies that the sovereignty of the coastal State extends to the territorial sea and to the air space above it, as does the United Nations Convention on the Law of the Sea adopted on 10 December 1982. The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law.’

Yet it must be conceded that selective inaction of the ICAO and the Security Council has allowed a certain degree of permissiveness in this area of the law. The meticulous reports made by the Iraqi state to flagrant violations of its sovereignty to the UN were ignored in their entirety. Allegations of aggressive, dangerous and illegal actions engaged in by the participating coalition aircraft in the so called no-fly zones in Iraq include aerial bombardment of villages resulting in loss of life and destruction of property; endangerment of health by deliberate breaking of the sound barrier; intimidating and illegal search of vessels within national maritime zones; harassment of civilian population; wanton destruction of the livestock and pollution of the environment. Iraq officially communicated over 500 reported incidents that involved alleged violations of Iraqi airspace by the states involved in policing of the controversial no fly zone. It is significant that when the criticisms became stringent, France pulled out of the arrangement. It is equally significant that states such as Saudi Arabia and Turkey were directly accused by Iraq of allowing their territory to be used as launching ground for the trespassing flights. This perhaps attests to the potential of the no-fly zone device to escalate international tensions and to involve a wide number of affected countries. Any precipitate introduction of no-fly zones in Libya increases the possibility of internationalisation of what is presently a domestic dispute. Any neighbouring state permitting British planes to operate over its airspace for the purposes of reaching targets within Libya will also probably become sucked into the conflict.

On the whole the no-fly-zones device in international relations has not received the authoritative treatment in international law that it deserves principally as a result of power politics. The practice has been left in the shadows of international practice perhaps deliberately by those that recognise its usefulness in acting against perceived weak states. In this way international action is dictated by the exigencies of western superpower influence and coordination. Power politics, however, must never be allowed to lead international law. When the USSR sponsored draft resolution to condemn the incursion of United States U2 spy aircraft into Soviet airspace as aggressive it received only the support of Poland. Similarly complaints by the few states that have faced no-fly zones sanctions have received little support in the international fora. Should the Libyan government succeed in downing British aircraft involved in the policing of no-fly zones it will appear to have been acting within the full exercise of its right of self defence. This is why British air troops should not be exposed needlessly to such danger.

This is not to say that there can be no situation under which no-fly zones may be legitimately envisaged. The point is that serious derogations from territorial sovereignty as this may arise only in a very limited category of cases. Such instances are best typified by the example of actions specifically undertaken with respect to Chapter VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, And Acts of Aggression). If a blockade of Libyan airspace is found to be desirable in the present circumstances, the Security Council may under Article 41 of the Charter impose such action ‘… by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

In the absence of such collective determination and action within recognised international law and within the confines of the pertinent provision of the UN Charter the plans of the UK government in introducing no-fly zones over Libya will be illegitimate under international law and will damage the UK’s standing as a law abiding and responsible state in the international system.”

March 9: Jonathan Wright has nine good reasons “Why the US and Its Friends Should Stay Out of Libya.”