ReligiousLeftLaw.com

Open U.S. Intervention in Syrian War

Most of us are waking up to the following news about the Syrian war:

WASHINGTON — “The White House declared Thursday that Syria had crossed a ‘red line’ by using chemical weapons in that country’s civil war, and in response, U.S. officials said, President Obama had authorized sending arms to some rebel groups.

The arms will be provided to the rebel Supreme Military Council, an official said. The council is the military arm of an umbrella group that represents more moderate factions of the forces arrayed against the government of President Bashar Assad. White House officials would not comment on the decision to supply arms.” [….] See today’s Los Angeles Times.

Does this in part reflect the substantial influence of “liberal hawks” like Susan Rice and Samantha Power?

See too this post on Rice and Power from IntLawGrrls.

As to several compelling reasons we might be distressed by this development, please see David Bromwich, “Stay Out of Syria,” in the New York Review of Books, and Patrick Cockburn’s piece on the Syrian war in the London Review of Books.

Images: “Before” (the war) and “after” pictures of the Great Mosque of Aleppo.

 

Psychotherapy and Buddhism: A Basic Reading Guide

 

This is a subject I hope to post something on in the near future, but in the interim I thought I’d make available some of the titles I’ll be reading in preparation.

• Aronson, Harvey B. Buddhist Practice on Western Ground: Reconciling Eastern Ideals and Western Psychology. Boston, MA: Shambhala, 2004.
• Bobrow, Joseph. Zen and Psychotherapy: Partners in Liberation. New York: W.W. Norton & Co., 2010.
  
• Claxton, Guy, ed. Beyond Therapy: The Impact of Eastern Religions on Psychological Theory and Practice. London: Wisdom Publications, 1986.
• Epstein, Mark. Thoughts Without a Thinker: Psychotherapy from a Buddhist Perspective. New York: Basic Books, 1995.
• Epstein, Mark. Psychotherapy without the Self: A Buddhist Perspective. New Haven, CT: Yale University Press, 2008.
• Fromm, Erich, D.T. Suzuki, and Richard De Martino. Zen Buddhism and Psychoanalysis. New York: Harper & Row, 1960.
• Germer, Christopher K., Ronald D. Siegel, and Paul R. Fulton, eds. Mindfulness and Psychotherapy. New York: Guilford Press, 2005.
• Germer, Christopher K. and Ronald D. Siegel, eds. Wisdom and Compassion in Psychotherapy: Deepening Mindfulness in Clinical Practice. New York: Guilford Press, 2012.
• Kaklauskas, Francis J., Susan Nimanheminda, Louis Hoffman, and MacAndrew S. Jack, eds. Brilliant Sanity: Buddhist Approaches to Psychotherapy. Colorado Springs, CO: University of the Rockies Press, 2008.
• Kawai, Hayao. Buddhism and the Art of Psychotherapy. College Station, TX: Texas A&M University Press, 1996.
• Magid, Barry. Ordinary Mind: Exploring the Common Ground of Zen and Psychotherapy. Boston, MA: Wisdom Publications, 2002.
• Moacanin, Radmila. Jung’s Psychology and Tibetan Buddhism: Western and Eastern Paths to the Heart. London: Wisdom Publications, 1986. Boston, MA: Wisdom Publications, 2002.
• Molino, Anthony, ed. The Couch and the Tree: Dialogues in Psychoanalysis and Buddhism. New York: North Point Press, 1998.
• Rubin, Jeffrey B. Psychotherapy and Buddhism: Toward an Integration. New York: Plenum Press, 1996.
• Safran, Jeremy D., ed. Psychoanalysis and Buddhism: An Unfolding Dialogue. Boston, MA: Wisdom Publications, 2003.
• Spiegelman, J. Marvin and Mokusen Miyuki. Buddhism and Jungian Psychology. Tempe, AZ: New Falcon Publications, 1985.
• Suler, John R. Contemporary Psychoanalysis and Eastern Thought. Albany, NY: State University of New York Press, 1993.
• Welwood, John. Toward a Psychology of Awakening: Buddhism, Psychotherapy, and the Path of Personal and Spiritual Transformation. Boston, MA: Shambhala, 2000.
• Young-Eisendrath, Polly and Shoji Muramoto, eds. Awakening and Insight: Zen Buddhism and Psychotherapy. New York: Brunner-Routledge/Taylor & Francis Group, 2002.

 

Rutgers-Newark Law School: People’s Electric

Professor George W. Conk has published his much anticipated (well, at least in some quarters) article on Rutgers-Newark Law School—People’s Electric—in the 1960s and ‘70s. Loyal and attentive readers might recall the inclusion of this school as one of the exemplary elements in my piece from last year, Toward a Manifesto for Inspiration for a People’s Law School. Here is the abstract:

“Rutgers-Newark Law School was the most innovative, exciting, and effective law school in the 1960’s and 1970’s. Civil rights and liberties, ‘poverty law,’ women’s rights, employment discrimination, open housing, and public education, were the foci of legal education at Rutgers - which is the State University of New Jersey. In those two decades Rutgers-Newark - which we affectionately called People’s Electric - developed a model of engaged legal education that was and is unique.

No other law school of its era - and perhaps since - to my knowledge has been so thoroughly characterized by a broad progressive social agenda. Affirmative action, racial justice, women’s rights, public education, open housing, and civil liberties were the focus of the frequently landmark litigation which originated or was substantially aided by students and faculty from Rutgers Newark.

The unique activism of Rutgers-Newark - a small public law school in an afflicted city - had a huge impact in the development of the law. The activist faculty and the clinics engaged law students deeply in innovative and intense litigation regarding the most important and controversial issues of the day. Students at People’s Electric learned first-hand the law-making function of the courts. They often helped make that law. No other law school in the country can begin to match its record in the 1970’s. This was accomplished without endowment, without a base of high ranking or wealthy alumni, without a tradition of such activism at the school, a public law school whose tuition was nominal. Students learned from extraordinarily talented lawyers who they assisted. Their successes showed students how to succeed by really trying. We left Rutgers confident that we knew how to and could change the law, confident that we could make a difference.

Graduates continued the mission in many ways. One outstanding example is the cadre who joined the Office of the Public Defender - a statewide agency - which led or participated in the defense of over two hundred capital trials from 1982-2007 when the death penalty was repealed and replaced with life without parole. There were no executions.”

Download the article here.

Human Rights: Philosophical, Legal, and Political Perspectives—A Bibliography

My updated bibliography for human rights is here (Thanks again to Jim Chen for formatting this and other bibliographies posted online.)

On Crime & Punishment (apologies to Dostoyevsky)

At Ratio Juris I’ve posted two new bibliographies: one on (municipal and international) “criminal law,” the other a companion compilation on “punishment and prison.”

"The Case for Food Stamps"

“The Case for Food Stamps”

By Christopher D. Cook for the Los Angeles Times (May 24, 2013)

Slashing food aid makes no sense in humanitarian, economic or public health terms.

“To hear Republicans — and some Democrats — in Congress talk, you’d think food-stamp dollars just disappear into a black hole. The prevailing debate in the Senate and House versions of the farm bill, which contains funding for food stamps (the Supplemental Nutrition Assistance Program, or SNAP), is over how much to cut. But when more than 15% of Americans remain impoverished, slashing food assistance for the poor makes no sense in humanitarian, economic or public health terms.

The House bill, which is gaining steam after passage by the Agriculture Committee last week, is the more draconian of the two. It would chop $20 billion over 10 years from SNAP, and its changes to food-stamp eligibility rules would cut off vital sustenance for about 2 million low-income people, including seniors and families with children. According to the Congressional Budget Office, 210,000 children in low-income families would lose their free school meals under the House plan.

The Senate version would cut far less, though a final figure will be hashed out by a conference committee in June. But the attacks on food assistance for the poor are deeply misguided and are only going to get worse. The proposed House budget from Rep. Paul D. Ryan (R-Wis.) seeks to gut food stamps by another $135 billion through block grants to states.

Yet government and other studies clearly show that food stamps are among the most wisely spent public dollars, providing essential nourishment and public health benefits to low-income people as well as economic stimulus to rural and urban communities. These are returns on spending that you won’t find in the corporate tax giveaways and military spending boondoggles routinely supported by both political parties, even as they scream for austerity when it comes to slashing ‘entitlements’ and food assistance for the poor.

The Trust for America’s Health, a health advocacy organization that focuses on disease prevention, warned recently of the consequences of cutting food stamps: ‘If the nation continues to underfund vital public health programs, we will never achieve long-term fiscal stability, as it will be impossible to help people get/stay healthy, happy and productive.’

Indeed, according to a 2011 study by the U.S. Department of Agriculture, ‘research shows that low-income households participating in SNAP have access to more food energy, protein and a broad array of essential vitamins and minerals in their home food supply compared to eligible nonparticipants.’ [….]

In another key finding, the National Academy of Sciences reported that food stamps helped lift nearly 4 million Americans out of poverty in 2010, while improving basic food and economic security for millions more.

Cutting food stamps also means reducing economic stimulus and job creation, precisely what’s needed to help reduce poverty and hunger. The 2011 USDA study found that food-stamp dollars ‘ripple throughout the economies of the community, state and nation,’ creating multiple levels of economic stimulus. The study also found that ‘every $5 in new SNAP benefits generates a total of $9.20 in community spending.’ Each additional food-stamp dollar generates another 17 to 47 cents of additional food purchases. [….]

In the farm bills moving through Congress, the politics of austerity are again being used to undermine food assistance for the poor. As the House and Senate debate how many dollars and people to cut from food stamps, their members should consider the daily realities the poor face. Most are living on a few dollars a day for food and, at best, work in minimum-wage jobs that barely cover rent. Cutting off these basic supports for those at the bottom of our economy is unwise, counterproductive and shameful.”

Christopher D. Cook is a journalist and the author of Diet for a Dead Planet: Big Business and the Coming Food Crisis (2006).

Please note: Inexplicaby, Typepad has twice failed to post my reply to the first comment to this post so I am making it here. First, the “case for Food Stamps” was not made by me, but by the author of the editorial, Christopher Cook, although I am in wholehearted agreement with his views. Second, the discussion and debate in Congress is not about possible alternatives to the Food Stamp program but about possible cuts to this particular Welfare State provision of food aid to the poor. Personally, I would prefer a Guaranteed Annual Income (or Basic Income Grant) scheme, but that is not what is at issue here. Finally, and assuming what is intended by the garbled and inarticulate word “gummint” is the term government, in a democratic welfare regime (be it liberal, corporatist, or social democratic), the payment of taxes does not amount to theft, either literally or figuratively. To believe otherwise, evidences a failure in  understanding the nature of modern democratic governance, in the nature of taxation, and in the role of economics in solving collective action problems in a democratic polity (in this case, as a modest principle of interpersonal ethics writ large so as to discharge our moral duties to vulnerable and thus dependent others) wherein the function of markets depends on the laws of the State. In any case, as Robert E. Goodin persuasively argued in Reasons for Welfare: The Political Theory of the Welfare State (1988), those who advocate market principles will find it difficult if not impossible to avoid at the same time committing themselves to a least a minimal welfare state, as the welfare state addresses well-known historical instances of market failure while at the same time affording new opportunities for those are vulnerable and dependent to participate in markets. The welfare state in fact serves to safeguard several fundamental preconditions of the market in Goodin’s argument, as markets presuppose, first, secure property rights, second, that not all goods or things will be subect to the marketplace, “for there to one sector that is governed by the laws of the market, there must be some other sector that is not.” Third, markets presume  or presuppose that its participants are essentially independent (or free) agents: “A variety of arguments (political, sociological, economic, and ultimately moral) converge on the conclusion that dependent agents [the converse of the state of independence or the state of insufficient freedom] ought to be beyond the play of market forces. In order for people to participate in the market as independent agents, there must be some nonmarket sector to meet the sorts of needs that would otherwise render those people dependent, and hence unqualified for market relations.” In short, welfare state provision like Food Stamps renders otherwise dependent individuals substantially independent of those market transactions that created or exacerbate their vulnerability (and increase the likelihood of exploitation), while enhancing their potential or capacity for some forms of market participation.   

Malcolm X (May 19, 1925 – February 21, 1965)

Today is the birthday of Malcolm X. By way of celebration, I leave you with three provocative books discussing his life and ideas:

• Cone, James. Martin & Malcolm & America: A Dream or a Nightmare? (Maryknoll, New York: Orbis Books, 1992).
• Marable, Manning. Malcolm X: A Life of Revolution (New York: Viking, 2011).
• Wolfenstein, Eugene Victor. The Victims of Democracy: Malcolm X and the Black Revolution (London: Free Association Books, 1989).

The Marxist Spirituality of C.L.R. James

I found occasion once before to post something on the “cricketing Marxist,” C.L.R. James, and now I’d like to draw your attention to a piece by Kenan Malik on “the 50th anniversary of C.L.R.  James’ wonderful, groundbreaking work Beyond a Boundary.” James exemplifies what I can only describe as a Marxist spirituality, the adjective qualifying something like the following:

“[A]t the richer end of the spectrum [of spirituality], we find the term used in connection with activities and attitudes which command widespread appeal, irrespective of metaphysical commitment or doctrinal allegiance. Even the most convinced atheist may be prepared to avow an interest in the ‘spiritual’ dimension of human existence, if that dimension is taken to cover forms of life that put a premium on certain kinds of intensely focused moral and aesthetic response, or on the search for deeper reflective awareness of the meaning of our lives and of our relationship to others and to the natural world.”—John Cottingham in The Spiritual Dimension: Religion, Philosophy, and Human Value (2005)

In Mad and Divine: Spirit and Psyche in the Modern World (2009) the Indian psychoanalyst and writer Sudhir Kakar, reminds us that

“Spirituality, like culture, has many definitions and yet manages to give a sense of familiarity to most of us. For me, the spiritual occupies a continuum from moments of self-transcendence marked by loving connection to an object—nature, art, visions of philosophy or science, the beloved in sexual embrace—to the mystical union of saints where the sense of the self completely disappears. The spiritual, then, incorporates the transformative possibilities of the human psyche: total love without a trace of hate, selflessness carved out of the psyche’s normal self-centeredness, a fearlessness that is not a counter-phobic reaction to the fear that is an innate part of the human psyche.”

Finally, a neurosurgeon, professor of medical ethics, and a philosopher, Grant Gillett, completes our generous conception of a spirituality that embraces a Marxist like James:

“Spirituality lifts our eyes from the possibilities defined by the everyday and economic. The divine wind recalls the breath that gives us life and the cleansing water that allows healing and refreshment in the arid wastes of suffering is a figure with meaning that goes beyond the material. In the most unlikely places we find loving and transformative touches, that are the things of the spirit in that they are ways not only of understanding but also beatifying what we do, however bloody, messy and unromantic it is. We are beset by directives and discourses that reduce, demean, and obscure our humanity, that are not noble, uplifting, inspiring, and fulfilling. We can render life in operational (or narrowly functional) terms and make it tolerable through escapism and pleasure but there is another way. We live and love in a world where real tragedies happen, real joy is found, and real connections are forged through time and across barriers of culture and position. In those things we discover the resonance in ourselves of inscriptions, utterances, and works that deepen our understanding.” From Gillett’s book, Subjectivity and Being Somebody: Human Identity and Neuroethics (2008)

Our conception of spirituality thus clarified, here are the first two paragraphs from Malik’s post on James:

“This year marks the 50^th anniversary of CLR James’ wonderful, groundbreaking work Beyond a Boundary.  To call it a book about cricket is a bit like calling cricket a ‘game.’ Beyond a Boundary blends politics and memoir, history and journalism, biography and reportage, in a manner that transcends literary, sporting and political boundaries. V S Naipaul, not a man given to offering easy praise, described it as ‘one of the finest and most finished books to come out of the West Indies.’ John Arlott, that most wonderful of cricket commentators, wrote of Beyond the Boundary, that it was ‘a book so outstanding as to compel any reviewer to check his adjectives several times before he describes it and, since he is likely to be dealing in superlatives, to measure them carefully to avoid over-praise – which this book does not need.’

Beyond the Boundary was a book that CLR James had to write, and that only he could write. Novelist and orator, philosopher and cricketer, historian and revolutionary, Trotskyist and Pan-Africanist – there are few modern figures who can match the intellectual depth, cultural breadth or sheer political contrariness of Cyril Lionel Robert James. He was a lifelong Marxist, yet one with an uncommonly fierce independence of mind that expressed itself both in his rejection of conventional Marxist arguments and in his refusal to repent of his politics even when it became fashionable to do so. He was an icon of black liberation struggles, and yet someone whose politics was steeped in a love of Western literature and Western civilization. He was a man whose affection for cricket was matched only by his love for Shakespeare. The book is in the image of the man himself. Brilliant, complex, contradictory, beautifully observed, deeply insightful, but sometimes also romantic and naïve. And, of course, boundary-crossing.” [….]

The rest is here.

Several Updated Bibliographies

I’ve recently updated several of my bibliographies:

(i)    Ecological & Environmental Worldviews: A Basic Transdisciplinary Bibliography

(ii)   Punishment & Prison: A Bibliography   

(iii)  Terrorism—Moral, Psychological, Political & Legal Perspectives: A Select Bibliography

(iv)  Torture: Moral, Legal & Political Dimensions—A Basic Bibliography

WASHINGTON — “A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that ‘it is indisputable that the United States engaged in the practice of torture’ and that the nation’s highest officials bore ultimate responsibility for it.” (New York Times, April 16, 2013)

The Superimposition* of a False Scandal upon a Real One at the IRS

Michael Hiltzik of the Los Angeles Times provides us with much needed context and perspective on the so-called “IRS Scandal.”

As Juan Cole notes, “The IRS scrutiny of Tea Party groups applying for tax-exempt charitable status derived from a legitimate concern at the more than doubling of such requests after the Citizens United ruling, and a suspicion that the groups were backed by Republican billionaires intending to use them for politics, not charity. It may be that the scrutiny was sometimes invidious, but it is not obvious on the surface as to whether the bureaucrats actually did anything out of the ordinary (left-wing requests for tax exempt status were flat; if they had suddenly doubled presumably they would have attracted attention too).”

See too, Peter S. Goodman at The Huffington Post: “The IRS was Dead Right to Scrutinize Tea Party.”

* Adhyāsa (Sanskrit: अध्यास) in Advaita Vedānta philosophy: “Throwing over or casting upon; misconception or erroneous attribution, the significance being that the mind casts upon facts, which are misunderstood, certain mistaken notions; hence false or erroneous attribution. Simply put, adhyāsa means superimposition or false attribution of properties of one thing on another thing.” [Adapted from Wikipedia entry]

Happy (Radical) Mother's Day!

At Huffington Post’s “Religion” page: Diana Butler Bass on “The Radical History of Mother’s Day.” (An introduction to Anna Reeves Jarvis— September 30, 1832-May 9, 1905). See too Ruth Rosen at Slate: “Soap to Ploughshares.” 

Motley readings worthy of our attention…

The following articles, and one book (in no particular order), I think well warrant our attention:

• Diane Marie Amann, “The President & the Prison Camp” (cross-posted at IntLawGrrls)
• Dan Joyner, “Syria Update, and the Evolution of a Right of Counterproliferation Oriented Preemptive Self-Defense”
• Charles S. Maier, “The Return of Political Economy”
• Neil deMause, “Contingency Plan: Outsourcing Education”
• Christopher McCrudden, “In Pursuit of Human Dignity: An Introduction to Current Debates”
• Adam Hanieh, “The Oslo Illusion”
• Allegra Pacheco, “Expanding the Legal Paradigm for Palestine: An International Law Conference at Birzeit University”  
• Wajahat Ali, “Against the Brahmins: An Interview with Pankaj Mishra”
• Richard M. Locke, “Can Global Brands Create Just Supply Chains?”
• From the editors of Himāl Southasian, a series of articles under the rubric, “Farms, Feasts, Famines”
• Melvyn Dubosky, “Does Organized Labor Have a Future?”
• Bill Fletcher, Jr., “Now What? Labor Unions and the Inevitability of Class Struggle”
• Michael Hirsch, “So Why Don’t We Have Better Unions?”
• Spencer J. Pack, “How the Right Got Adam Smith Wrong on the Eve of Environmental (and hence Economic) Catastrophe”
• Lisa Herzog, “Markets” (from the Stanford Encyclopedia of Philosophy)
• M. Lynx Qualey, “5 Arabic Books to Read ‘Before You Die’”
• Forthcoming: Philip Mirowski, Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown (London: Verso, 2013)

The Corporatization of Higher Education: A Basic Reading List

After reading a skeptical query at another law blog about the putative “corporatization of higher education,” I thought to assemble this select bibliography on the topic. Incidentally, it turns out the law professor who posed this question responded in turn to a reply by proclaiming with remarkable confidence that “corporatization has not come to law schools in any meaningful fashion.” Is that true? [Correction: It may not have been a law professor, although perhaps someone who has published law-related articles and now works for a private corporation.]

• Aronowitz, Stanley. The Knowledge Factory: Dismantling the Corporate University and Creating True Higher Learning. Boston, MA: Beacon Press, 2001.
• Aronowitz, Stanley. C. Wright Mills and the Making of Political Intellectuals. New York: Columbia University Press, 2012.
• Bok, Derek. Universities in the Marketplace: The Commercialization of Higher Education. Princeton, NJ: Princeton University Press, 2003.
• Chomsky, Noam, et al. The Cold War and the University: Toward an Intellectual History of the Postwar Years. New York: The New Press, 1997.
• Chomsky, Noam. “American Freedom and the Corporatization of Universities” (partial transcription of lecture), April 6, 2011: http://www.chomsky.info/talks/20110406.htm
• Donoghue, Frank. The Last Professor: The Corporate University and the Fate of the Humanities. New York: Fordham University Press, 2008.
• Ginsberg, Benjamin. The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters. New York: Oxford University Press, 2011.
• Jacoby, Russell. The Last Intellectuals: American Culture in the Age of Academe. New York: Basic Books, 1987.
• Kenney, Martin. Bio-Technology: The University-Industrial Complex. New Haven, CT: Yale University Press, 1988.
• McGettigan, Andrew. The Great University Gamble: Money, Markets and the Future of Higher Education. London: Pluto Press, 2013.
• Mills, Nicolaus. “The Corporatization of Higher Education,” Dissent (Fall 2012): Available: http://www.dissentmagazine.org/article/the-corporatization-of-higher-education
• Mirowski, Philip. Science-Mart: Privatizing American Science. Cambridge, MA: Harvard University Press, 2011.
• Nelson, Cary and Stephen Watt. Academic Keywords: A Devil’s Dictionary for Higher Education. New York: Routledge, 1999.
• Newfield, Christopher. Unmaking the Public University: The Forty-Year Assault on the Middle Class. Cambridge, MA: Harvard University Press, 2008.
• Nussbaum, Martha C. Cultivating Humanity: A Classical Defense of Reform in Liberal Education. Cambridge, MA: Harvard University Press, 1997.
• Nussbaum, Martha C. Not for Profit: Why Democracy Needs the Humanities. Princeton, NJ: Princeton University Press, 2010.
• Readings, Bill. The University in Ruins. Cambridge, MA: Harvard University Press, 1996.
• Ryan, Alan. Liberal Anxieties and Liberal Education. New York: Hill and Wang, 1998.
• Schrecker, Ellen. The Lost Soul of Higher Education: Corporatization, the Assault on Academic Freedom, and the End of the American University. New York: The New Press, 2010.
• Scott, Debra Leigh. “How the American University was Killed, in Five Easy Steps.” The Homeless Adjunct blog (August 12, 2012).
• Simpson, Christopher, ed. Universities and Empire: Money and Politics in the Social Sciences during the Cold War. New York: The New Press, 1998.
• Steck, Henry. “Corporatization of the University: Seeking Conceptual Clarity,” Annals of the American Academy of Political and Social Science, Vol. 585 (Jan. 2003): 66-83.
• Tuchman, Gaye. Wannabe U: Inside the Corporate University. Chicago, IL: University of Chicago Press, 2009.
• Washburn, Jennifer. University, Inc.: The Corporate Corruption of American Higher Education. New York: Basic Books, 2005.

Thanks to a colleague at my college, Paul McDowell (Anthropology), for a couple of additional titles.

Happy May Day! (that is to say, the real ‘Labor Day’)

“The struggle for the 8-hour day reached a significant moment on May 1, 1886 as the Knights of Labor and numerous other labor organizations called for a national work stoppage on this day to demand that the 8-hour day become the law of the land. Thousands of workplaces shutdown across the country and capital trembled. Linked to the issue of shorter hours was the question of child labor as depicted in this 1908 Lewis Hine photo of a few of the doffers and sweepers in the Mollahan Mills in Newberry, South Carolina. In the U.S. serious legislation governing the hours of work and child labor was a long, long time coming as workers fought and died well into the 1930s before an upsurge in organization pressured the government into making a handful of modest reforms.”—From the Facebook page of the Bread & Roses Centennial (1912-2012) Committee.

Prior May Day posts (including an historical introduction to the holiday in the first of the two links) are here and here.

Several years ago ago at Slate, Robert Pinsky discussed two poems by William Blake that serve to fill out the meaning of this holiday, both titled “The Chimney Sweeper,” from Songs of Innocence (1789) and Songs of Experience (1794) respectively.

Neoliberal Capitalism in Bangladesh: The Violence of "Free Markets"

At least 3,000 people are believed to have been in the building on Rana Plaza at the time the building collapsed. More than 380 bodies had been recovered by Monday morning. Hundreds are still missing. And with every day that passes, the chances of finding survivors grows dimmer.

The deadly incident in Savar has already been called the worst industrial accident in the country’s history. It serves as a reminder that nothing has changed when it comes to the inhumane conditions under which clothes are made in Bangladesh for European and American textile companies and clothing chains. And the same can be said about the culture of corruption that is rampant in Bangladesh, the abundance of illegally procured construction permits and the lax attitude factory owners take toward safety standards. — Hasnain Kazim, Nils Klawitter and Wieland Wagner, from their piece for Der Spiegel (April 29, 2013), available here.

The disaster refocused attention on the dangers facing workers in the booming Bangladeshi garment industry, ramping up calls for stricter regulation. Western brands whose labels were found in the wreckage faced new pressure to sign on to a safety agreement.

“Brands can no longer justify any further delay.... The lack of action demonstrated by brands amounts to criminal negligence,” Ineke Zeldenrust of the Clean Clothes Campaign said in a statement Monday.—From the Los Angeles Times (April 30, 2013)

These tragedies could not have come at a worse time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on.

The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine-member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. [….]

A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”

In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country. [….]—Roger Alford at Opinio Juris (April 26, 2013)

“The Terror of Capitalism,” Vijay Prashad, CounterPunch (April 26-28, 2013)

“On Wednesday, April 24, a day after Bangladeshi authorities asked the owners to evacuate their garment factory that employed almost three thousand workers, the building collapsed. The building, Rana Plaza, located in the Dhaka suburb of Savar, produced garments for the commodity chain that stretches from the cotton fields of South Asia through Bangladesh’s machines and workers to the retail houses in the Atlantic world. Famous name brands were stitched here, as are clothes that hang on the satanic shelves of Wal-Mart. Rescue workers were able to save two thousand people as of this writing, with confirmation that over three hundred are dead. The numbers for the latter are fated to rise. It is well worth mentioning that the death toll in the Triangle Shirtwaist Factory fire in New York City of 1911 was one hundred and forty six. The death toll here is already twice that. This ‘accident’ comes five months (November 24, 2012) after the Tazreen garment factory fire that killed at least one hundred and twelve workers.

The list of ‘accidents’ is long and painful. In April 2005, a garment factory in Savar collapsed, killing seventy-five workers. In February 2006, another factory collapsed in Dhaka, killing eighteen. In June 2010, a building collapsed in Dhaka, killing twenty-five. These are the ‘factories’ of twenty-first century globalization – poorly built shelters for a production process geared toward long working days, third rate machines, and workers whose own lives are submitted to the imperatives of just-in-time production. Writing about the factory regime in England during the nineteenth century, Karl Marx noted, ‘But in its blind unrestrainable passion, its wear-wolf hunger for surplus labour, capital oversteps not only the moral, but even the merely physical maximum bounds of the working-day. It usurps the time for growth, development and healthy maintenance of the body. It steals the time required for the consumption of fresh air and sunlight…. All that concerns it is simply and solely the maximum of labour-power that can be rendered fluent in a working-day. It attains this end by shortening the extent of the labourer’s life, as a greedy farmer snatches increased produce from the soil by reducing it of its fertility’ (Capital, Chapter 10).

These Bangladesh factories are a part of the landscape of globalization that is mimicked in the factories along the US-Mexico border, in Haiti, in Sri Lanka, and in other places that opened their doors to the garment industry’s savvy use of the new manufacturing and trade order of the 1990s. Subdued countries that had neither the patriotic will to fight for their citizens nor any concern for the long-term debilitation of their social order rushed to welcome garment production. The big garment producers no longer wanted to invest in factories – they turned to sub-contractors, offering them very narrow margins for profit and thereby forcing them to run their factories like prison-houses of labour. The sub-contracting regime allowed these firms to deny any culpability for what was done by the actual owners of these small factories, allowing them to enjoy the benefits of the cheap products without having their consciences stained with the sweat and blood of the workers. It also allowed the consumers in the Atlantic world to buy vast amount of commodities, often with debt-financed consumption, without concern for the methods of production. An occasionally outburst of liberal sentiment turned against this or that company, but there was no overall appreciation of the way the Wal-Mart type of commodity chain made normal the sorts of business practices that occasioned this or that campaign. [….]

In the Atlantic world, meanwhile, self-absorption over the wars on terror and on the downturn in the economy prevent any genuine introspection over the mode of life that relies upon debt-fueled consumerism at the expense of workers in Dhaka. Those who died in the Rana building are victims not only of the malfeasance of the sub-contractors, but also of twenty-first century globalisation.”

Vijay Prashad’s latest book is The Poorer Nations: A Possible History of the Global South (London: Verso, 2012).

Addendum: See too this timely Forum discussion at Boston Review: Can Global Brands Create Just Supply Chains? The lead article addressing the question of corporate responsibility with regard to industrial workers involved in the geography of global manufacturing is by Richard M. Locke.

Locating the Dignity of the Dead

“Even those who think that death is a continuation, and not an ending, can benefit from contemplating the implications of annihilation. That annihilation would be bad for them explains why it is important to live forever: it is the only way to avoid the evil of annihilation. If, on the other hand, annihilation would not be bad for them, the question arises as to why they value the prospect of immortality.”—Steven Luper [1]

“The human species is only partly natural. It is the only species about which that can be said.”—George Kateb [2]

“Philosophers tend to think that precision is always important, but they have known since Aristotle that that may not always be wise. Sometimes the quest for precision blinds us to certain insights that we can as yet only formulate haltingly; sometimes it blinds us to the importance of pursuing certain questions (and linking them to other questions) even when there is not yet an answer in sight.”—Jeremy Waldron [3]

At Concurring Opinions a couple of weeks ago, Professor Taunya Banks penned a delightfully provocative post titled “Fortune’s Bones: Is There Dignity after Death?” Banks introduces three different historical cases: the 1995 Body Worlds exhibit by Gunther von Hagens; the skeleton of an enslaved man (whose name was Fortune) who died in 1798 and was being studied by the anthropology faculty and students at Quinnipiac University; and perhaps the best known of the three, the story of Henrietta Lacks as recently discussed by Rebecca Skloots in her book The Immortal Life of Henrietta Lacks (2010), that together raise for her the question of whether or not the concept of dignity can be applied to deceased individuals, in other words, “Is there dignity after death?” The following paragraphs conclude her discussion, followed by my attempt to address her question:*

[….] “Scientists and anthropologists might argue that the cases of Fortune and Mrs. Lacks are distinguishable from Gunther von Hagens’ Body Worlds exhibit because the educational value is clearer in the former than the latter. They might also argue, as one Johns Hopkins researcher told me, that the HeLa cell is not part of Mrs. Lacks but has morphed into something quite different.[4] Thus it does not matter that her family consider the cell to be a living part of their deceased family member. Still others like academic Stephen Bates ask whether human corpses are different from skeletons or human cells. (Prenates, Postmorts and Bell-Curve Dignity, Hastings Center Reps. 2008) The more human-looking the remains, Bates writes, the more concerns about dignity seem to arise.

According to my colleague Leslie Henry, there are strong arguments for dignity after death as well as some laws that arguably recognize some type of dignitary interest. Physicians usually are required to secure consent from the deceased’s next of kin before using a cadaver to teach medical students. There are statutes that penalize the desecration of grave sites (beyond trespassing). There also is the Native American Graves Protection and Repatriation Act (NAGPRA) which required federal agencies to return ‘cultural items’ including human remains, to the descendants of Indian tribes and Native Hawaiian organizations. Granted none of these laws directly touch on the cases of Fortune and Mrs. Lacks.

In the end I offer no suggestions. But I am concerned because too often the people denied dignity in death, were also denied dignity in life.”

*           *           *           *           *           *           *

I’ve been pondering Professor Banks’ thoughtful and moving post for some time now and have arrived at the point at which temerity prompts me to share my tentative thoughts on (explicit and implicit) questions raised by her piece. I think it is true that there is something to the notion of a “dignitary interest” with regard to the dead (as individual persons). This is not my preferred term, however, as it suggests the decedent herself has post-mortem “interests,” which is eminently arguable and, I believe, not true.[5] But if we understand this dignitary interest as having something to do with the attitude and respect of the living toward the decedent as a previous embodiment or incarnation of transcendent value, a value which transcends sentience, then it’s possible to articulate a stipulative or précising definition which allows for the possibility (in some sense) of “disrespecting the dead” but not harming them. It is not that the dead person’s bones or cremated ashes, or some scientific sample of cells, as such, that incarnates the transcendent value of dignity; so we cannot speak, literally at least, of “continuing assaults on the dignity of the deceased.” Rather, with death, it is our memory of the fact that a person, with a unique narrative history, a person of intrinsic dignity and incomparable value or worth has passed, and death, as the converse of life, is an occasion for our individual and collective reflection on—as remembering, commemorating, and honoring—the precious nature of personhood, the powerful concept of dignity, and the nature of human normative agency. Our treatment of a dead person’s remains will reveal our ability to respect and to honor, and is therefore symbolic of, a human being who, for a brief period of time, was locus of the dignity of humanity in his or her own person, an individual who was, at one time, the incarnation of transcendent value.

In addition to or apart from recognizing the expressed preferences of the decedent about what to do with her remains, or attempts at inferring the wishes (e.g., by way of immediate family, closest friends, or end-of-life caregivers) of the decedent, and sans any traditional burial or after-death treatment and (ritualistic) practices associated with a decedent’s worldview, I think we might somehow express, reveal or evoke something of the dignitary attitude of respect in the manner in which we respond to the death of an individual and treat their remains. Such expression can come not only from those who knew or were close to the decedent, but also from those whose task is to handle the remains. We might, for example, mandate a period of memory and commemoration for the decedent that recognizes an individual of incomparable worth, of inherent dignity has died (regardless of whether such dignity was respected in the person’s lifetime or what kind of life that person lived; hence, again, this is not about any post-mortem interest as such), and deserving of acknowledgment and remembrance if only for this reason. I believe the manner in which we handle the remains can and should be the occasion for honoring or celebrating the dignity of personhood, for ritual remembrance of the respect owed humanity in the individual person. The remains can become the occasion or means whereby we honor the transcendent value of dignity that we failed (or may have failed) to recognize and respect during the person’s lifetime. This demonstration of respect I imagine to be very close—similar or analogous—to the Confucian understanding of the proper performance of li.[6] As Banks notes in her second paragraph above, there are some legal rules for particular situations or occasions that can be viewed as (directly or indirectly) permitting or encouraging demonstration of this respect. 

   The question then becomes whether or not we can find some means whereby we generalize such an attentive and focused demonstration of dignitary respect for all decedents, perhaps through engagement in a (secular) ritual celebration or honoring of the dead person in a way that affirms and reinforces our belief in human dignity and the incomparable value of normative human agency. After Stephen Darwall, this takes the form of recognition respect, distinguished from appraisal respect insofar as the former lacks the latter’s conceptual connection to merit and esteem: “Recognition respect concerns, not how something is to be evaluated or appraised, but how our relations to it are to be regulated or governed.” Following the performance of such a secular ritual (at least in the case of those whose wishes are not known or whose worldview does not prescribe some kind of funeral service), which might be as simple as a published or public proclamation (that speaks to the dignity and inviolability of the human person), perhaps in conjunction with or followed by a period of time in which the remains are not in any way disposed or used for scientific research, the decedent’s remains—be they bones and teeth, cremated ashes, or simply cells—could then be buried, scattered, or enlisted for scientific research. At this point in time, that part of ourselves which belongs indissolubly to the natural world (for a ‘transcendental’ or non-reductionist naturalist like Grant Gillett, this ‘part’ would be a human being absent the narrative ‘space’ of reason and will) and by which we make sense of the notion of embodiment, can now return to the natural world (including the natural world as understood in the sciences), no longer a locus of transcendent value in the form of human dignity. This (so to speak) return to the natural world upon the fulfillment of such conditions represents one point along the continuum of dignitary respect for the dead, for the living, and for those who follow us as loci of transcendent dignity. To leave our “human world” and return to the greater natural world is something the psalmist and secularist, the Muslim and the man-in-the-street, the Daoist and the Buddhist, can alike appreciate in a language that connotes spiritual, metaphysical and aesthetic sensitivity and sensibilities in speaking to the grandeur, the sublimity, the harmony, proportion, and beauty of nature. (Bear in mind that things are a bit different in the case of Mahāyāna Buddhism because, after Nāgārjuna, nirvāṇa and saṃsāra are said to be ‘not different’ when viewed from the ultimate nature of the Dharmakāya, for an individual can attain nirvāṇa in this lifetime by following the Buddhist path. Their duality is only (a) conventional (truth), for if they were ultimately different (or expressed an absolute truth) this would be impossible. By implication, this speaks to the conventional duality of life and death as well, hence a ‘return’ to nature is only true conventionally speaking, and thus for any of us who have not had the requisite spiritual realization that establishes the non-difference between nirvāṇa and saṃsāra…or life and death, it will appear as absolutely true. Something comparable to this might also be the case in Daoism.) But as a condition of this return to nature, a ritual or solemn acknowledgement of transcendental dignity and intrinsic inviolability of the human person in reference to the decedent, including a proscribed period in which the decedent’s remains are not to be used for any educational or scientific purposes, could go some way toward communicating the all-important value of human dignity and our respect for the nature of personhood as indicative of the manner in which our species transcends the natural world.

Now, for various reasons, some of them of Kantian provenance or inspiration, showing respect for such dignity has been taken to mean acknowledging the person’s (normative) human agency (as a capacity), in the sense that the ways of being (a) human (animal) distinguishes us from our nonhuman animal relatives. This means honoring both our “being” and “willing.” David Luban, who prefers a naturalistic and non-metaphysical account of dignity—albeit one with “ontological heft”—believes Kant was speaking more about “willing” than “being,” but I think he’s mistaken on this point. In any case, Luban’s discussion of dignity is largely intended for legal ethicists (although it has wider value outside that application, as he himself suggests and demonstrates), and in this context he speaks of the lawyer listening to the client’s “story,” every person having a “story” to tell insofar as they are “authors” in some measure or another of their lives (and, as characters, part of the narrative accounts of at least some of those with whom they have interacted over the course of their lives). These stories revolve around “meaning” of various kinds, however inarticulate or disturbing we might, as outsiders, find them to be (think of those accused of the most heinous crimes), for to “have a story,” Luban writes, “means being the subject of experience, and it means existing in a web of commitments, however detestable or pathetic those commitments may be.” Luban’s naturalistic rendering of dignity appears unable to account for how we might accord dignitarian respect toward the decedent, after all, the author of the story, the subject of the experience, is no longer with us. And yet he or she may become a character or even protagonist in the stories of those who survive and follow the decedent, for we are, as has been said “inveterate story tellers” (folk psychological theory, say, like that proffered by Daniel Hutto, is here quite useful in accounting for this fact). These stories could be seen as functioning to remind us what it means to be human, involving questions of individual and collective identity, memory, and meaning, for example.[7] In short, we treat the dead with respect (more about this in a moment), as a reminder to the living what it means to live a human life, for death is a vivid and insistent reminder of the value and beauty of life (human and non-human), a value and beauty that becomes part and parcel of the best stories we tell. Luban’s approach might be filled out or simply supplemented with recent work in narrative ethics and narrative metaphysics, especially if we should want to employ it for treating the question of “dignity after death.”

Religious Worldviews: Characteristics

I think the presence of most if not all of the following “characteristics” helps us clarify what we often (and perhaps should) mean by the term “religion” or religious worldview (these might even serve as criteria for identifying ‘religion’ for legal purposes). It is capable of encompassing both “Western” and “Eastern” religious traditions, theistic and nontheistic worldviews, as well as many new (although not necessarily ‘New Age’) religions. The assumption here is that there is no readily or agreeably identifiable “essence” to religion, even if we often focus on certain dimensions or characteristics, say, a core set of beliefs (as a central set of truth-claims), the “transcendence” of religion, certain sorts of religious experience: of the “numinous” or “mystical” or “revelatory” and so forth. Our next task would be to identify what it means to cleave to a non-religious worldview.*

1. Belief in supernatural beings (spirits, gods, etc.), God, or a supreme divine principle or force (in the latter case, comprehensive or ‘holistic’ in structure).

 2. A distinction between sacred and non-sacred (or ‘profane’) objects, space, and/or time.

3. Ritual acts centered upon or focused around sacred events, places, times, or objects. This includes such activities as worship, prayer, meditation, pilgrimage, sacrifice (vegetable, animal, or human; literal or figurative), sacramental rites, lifecycle rituals, and healing activities.

4. A moral code (ethics) or “way of life” believed to be sanctioned by the gods or God, or (in an informal sense: logically) derived from adherence to the divine principle or force.  (There is no assumption here that morality need be religious, indeed, morality is conceptually distinct from and independent of religion.)

5. Prayer, worship, meditation, and other forms of “communication” or attunement with the gods, God, or the divine principle or force.

6. A worldview that situates, through (usually mythic) narrative, the individual and his/her community and tradition within the cosmos, world, and/or history. It is a significant, if not primary source of one’s identity, both in its individual form and group aspect. The worldview articulates the meaning—makes sense of—the group’s cultural traditions: its myths, history, rituals, and symbols. This often involves treating questions of the meaning of life and death (and what, if anything, follows death for a human being), of suffering and evil, of what philosophers term questions of personal identity, of humanity’s relation to the cosmos and natural world, its relation to nonhuman animals and perhaps a “spirit” world or “other worlds.” The worldview articulates the fundamental values of a religious community so as to affirm its most important values and/or its “ultimate value.”

7. Characteristically religious emotions or attitudes associated with that thought to be of divine provenance or endowed with “spiritual” power: a peculiar form of awe and fear, “dread” or angst, existential anxiety, sense of mystery, adoration, reverence, love, devotion, hope, a sense of guilt or shame, serenity, compassion, bliss, etc.

8. A more or less total organization or structuring of one’s life or individual lifeworld based on an understanding (hence interpretation) of the religious worldview (the ‘lifeworld’ may include beliefs, values, and practices not directly linked to or associated with a religious worldview). This understanding does not necessarily coincide with the normative pictures painted by those with religious authority or the “official” worldview of the religion, indeed, it may be rather idiosyncratic or even cognitively crude or fairly sophisticated, psychologically and philosophically speaking. Prima facie evidence reveals the religious adherent believes in or is attempting to live in accordance with the worldview.

9. A social group wherein personal and collective—cultural—identity is forged by the aforementioned factors.

10. Artistic or creative expressions related to any of the above characteristics.

We might keep in mind that the sort of analytical clarity sought in philosophical circles or the desiderata of semantic legal precision may not be applicable if by that is meant a definition (or something very close to a definition) of religion. Why? The late B.K. Matilal provides one reason from the philosopher A.N. Whitehead:

“Insistence on clarity at all costs is based on sheer superstition as to the mode in which human intelligence functions. Insistence on hardheaded clarity issues from sentimental feeling, as it were, a mist cloaking the perplexities of fact.”

* This list of characteristics is inspired by and in part follows that first provided by William P. Alston in the volume he edited, Religious Belief and Philosophical Thought: Readings in the Philosophy of Religion (Harcourt Brace Jovanovich, 1963): p. 5.

Addendum: In response to a comment to this post, I thought the following might be of interest: There has long been a recognition among anthropologists, sociologists, and historians (and even a few political scientists) that nationalism is often intertwined with religion and that nationalist and political ideologies frequently possess religious or religious-like characteristics: the radical break with tradition sought in the French Revolution resulted in a new political culture filled with rhetoric, symbols, images, and festivals with mythological and religious precedent or resemblance. The cases are varied and widespread: Zionism in Palestine, Maoist Marxist-Leninism in China (which functioned like a state religion), and what Robert Bellah famously (or infamously in some quarters) defined as “civil religion” in this country, to cite several of the more conspicuous examples. In the words of my teacher and mentor in the study of religions, Ninian Smart, “It is a not uncommon observation that modern nationalism functions like a religion.” So too the late Marxist historian Eric Hobsbawm notes in his work on “nations and nationalism,” the “links between religion and national consciousness can be very close, as the examples of Poland and Ireland demonstrate,” and as is often noted today with regard to Islam in the Arab world. Yet we should also point out, with Hobsbawm, “that the prevalence of transnational religions, at all events in the regions of the world in which modern nationalism developed, imposed limits on religio-ethnic identification.” Finally, again with Hobsbawm, and perhaps indicative of the complexities of the historical entanglement of religion and nationalism, sometimes religious conversion has led to the creation of two distinct nationalities: “for it is certainly Roman Catholicism (and its by-product, the Latin script) and Orthodoxy (with its by-product, the Cryllic script) which has most obviously divided Croats from Serbs, with whom they share a single language of culture.”

Toward an Understanding and Explanation of Terrorism: Beyond Current Counterterrorism Strategies

[P]eople don’t simply kill and die for a cause. They kill and die for each other.—Scott Atran

Militancy in insurgent organizations and involvement in suicide attacks seem to be connected to the economic cycle, to downward social mobility processes, and, most of all, to particularly traumatizing personal experiences, such as the killing of friends and relatives, imprisonment, and isolation due to emigration.—Luca Ricolfi (discussing suicide terrorism in the Palestinian struggle for self-determination beginning in 1981)

Much of post-war ‘terrorism’ [in the twentieth century] was linked to specific situations of decolonization and dissipated on independence.—Ben Saul

After reading an important article by Phillip Carter and Deborah Pearlstein in Foreign Policy, “The Appeal of the Courts,” concerning the counterterrorism strategies of states (individually and in concert) and the reasons why a “blended, postwar approach” in which “the military plays a supporting, not a leading, role” has of late become the dominant model and should in fact be the preferred model generally for such strategies, I thought to respond with the following questions:

I only wish as much thought and attention was devoted to the nature and causes of terrorism, especially non-State terrorism in the context of political struggles, for example: why do rational individuals (psychological evidence testifies to the predominantly ‘normal’ cognitive and rational orientation of these individuals) involved in groups resort to such tactics? What are the dominant motivational variables involved in the choice for terrorist acts? Why do these individuals and groups attempt to provide moral justification for their acts? What are the factors (beyond sheer State repression) responsible for “de-radicalization” of terrorist groups? How do we make those factors more salient and probable so actors find sufficient reason to abandon terrorist tactics (which need not necessarily mean a corresponding commitment to liberal democratic principles and practices, but it is certainly a worthwhile achievement nonetheless and might portend such commitment)? What does the history of terrorism teach us about such groups vis-à-vis their socio-economic and political (local, national, and global) environments? What does it mean to notice that one-time terrorists have later become “respected” statesman or political actors in democratic processes (e.g., in Israel, South Africa, and Ireland) or would-be democratic societies? How do we cool the highly volatile and counter-productive passions that acts of terrorism stir among elites and members of the public alike (and lead to all manner of violations of due process and habeas corpus, among other legal and human rights violations)? Why is counter-terrorism conceived solely in legal and/or military terms (be it predominantly military or the ‘blended, post-war approach’ discussed in the article)? Why is “counterterrorism” primarily about and preoccupied with non-State actors and largely neglectful of state or state-sponsored terrorism, the latter causing immensely more deaths and harms than the former (which of course does not imply we need ignore or trivialize the former kind, only that we view it in proper perspective)?

And, while it should go without saying, asking and endeavoring to systematically and sincerely answer these and related questions (which require cross-disciplinary collaboration among those involved in law, the social sciences, psychology, and moral and political philosophy) of course in no way represents an attempt to morally or politically justify terrorism (setting aside for the moment a definition of terrorism and terrorist acts, although I’ve found C.A.J. Cody’s definition* useful if not persuasive for most purposes).

In a future post I’ll address what some researchers have said by way of framing and beginning to answer these questions.

* “A political act, ordinarily committed by an organized group, which involves the intentional killing or other severe harming of noncombatants or the threat of the same or intentional severe damage to the property of noncombatants or the threat of the same.”

Nicholas C. Petris, Old-School Democrat (1923 - 2013)

“‘Politics’ is not some strange activity conducted by ‘them’ rather than ‘us.’ The fruits of democracy are best seen through the lens of ‘everyday politics,’ in the schools and the hospitals, in the roads and the trains, in the courts and the shops, in community groups and social protests, in bars and sports clubs, in work and play, and in most of all the freedom to question and challenge. From the nursery to the nursing home ‘everyday politics’ improves people’s lives.”

“Democracy revolves around the possibility of collective decision making about collective action for the common good but we have allowed it to become redefined as the freedom of individuals to pursue their own selfish interests and decide upon their own actions. The real failing of politics [in societies like ours] is therefore the manner in which it has cultivated societies in which everyone believes they have a divine right to ever-rising living standards irrespective of their own personal endeavor, and if life fails to deliver then it must be those loathsome politicians who are to blame. No politician has the magic to satisfy a world of greater expectations, and the world does not have the resources to satisfy those expectations. Demonizing politicians might contribute to the myth of collective innocence but at the end of the day we are all complicit.”

“Politics is, at base, a moral activity and therefore a lack of trust in the capacity of political institutions, political processes, and politicians reflects a much deeper lack of faith in ourselves and in each other. This is because the nature of politics defines the nature of any society. [….] We might also understand that politics delivers rights and responsibilities and from this reflect just a little on whether we have all become a little too good at taking and demanding but possibly less good at giving and offering. ‘Politics’ does not simply involve the conduct and decisions of politicians but also creates a set of expectations regarding the behaviour and decisions of the public. [….] The reduction of everything to financial value or a market-like relationship has arguably shaped our sense of entitlement while dulling our sense of belonging to a broader political community.”—Matthew Flinders, Defending Politics: Why Democracy Matters in the Twenty-First Century (Oxford University Press, 2012).

With the above by way of backdrop, I’d like to draw your attention to the recent death of what was—for want of a better expression—an old-school politician from the Democratic Party from my home state, Nicholas C. Petris (February 25, 1923 - March 20, 2013). As noted in his Wikipedia entry, Petris “was a California State Senator from 1966 until 1996. A Democrat, he represented the 11th district from 1966 to 1976 and the 9th district from 1976 until he was termed out in 1996. He was previously in the California State Assembly, representing the 15th district from 1958 until 1966.”

And now, from his obituary notice in the Los Angeles Times:

“Nicholas C. Petris, who was a leading liberal voice for nearly four decades as a California state senator and assemblyman representing his hometown of Oakland and other East Bay cities, has died. He was 90. [….]

A Greek American known for his eloquence from the floor of the state Senate, Petris championed a host of liberal causes during his career, offering legislation on behalf of the poor, the sick and the elderly. A Democrat, he also wrote laws that increased environmental protections and expanded the rights of farmworkers and tenants.

‘He was the last of the real giants of the old Senate,’ former state Sen. John Burton, now chairman of the California Democratic Party, said Thursday. ‘He never compromised his principles and was true in what he believed — a real intellectual liberal.’

Legislation that bears Petris’ name, the 1967 Lanterman-Petris-Short Act, bars the involuntary commitment to psychiatric hospitals of most people with mental illness. He also wrote laws that required redevelopment agencies to build housing for low- and moderate-income residents, and prohibited smoking on airplanes, trains and buses in the state. As an assemblyman, he was also the co-author of legislation that was credited with saving San Francisco Bay from overdevelopment.

‘He felt that government was for people who needed help, that the wealthy are good on their own,’ said [Felice] Zensius, who worked for Petris for 25 years, the last 10 as his chief of staff. ‘So when crowds of lobbyists came to our office, it was people advocating for the mentally ill, the farmworkers, the elderly. That’s what he cared about.’ [….]

Nicholas Christos Petris was born in Oakland on Feb. 25, 1923, the son of Chris and Mary Petris, who were both Greek immigrants. He spoke mainly Greek until he started school. He earned a bachelor’s degree in journalism from UC Berkeley and a law degree from Stanford University. He served with the Office of Strategic Services during World War II, then worked as a lawyer before he was elected to the Assembly in 1959 and to the state Senate in 1967.

Petris was known for his oratory and for peppering his Senate speeches with quotations from Greek philosophers and politicians. ‘For Christ’s sake, Nicky, you’re doing Pericles,’ Burton said he would tease Petris, a reference to the great statesman of ancient Athens.

In 1991, Petris was among the many who lost their homes in the Oakland Hills to a devastating wildfire that destroyed more than 2,700 residences. The blaze also claimed his beloved personal library, filled with volumes of Greek philosophy, Greek history and English literature. Soon after, his colleagues in the Senate lined up and one by one presented him with books to help fill the bookshelves in his new library. ‘I was in tears the whole time,’ he told the Modesto Bee several years later.” [….]

I hope we might one day soon once again deserve politicians of such integrity and stature.

Addendum: There’s a wonderful oral interview conducted by Gabrielle Morris (Regional Oral History Office, University of California, Berkeley) and transcribed for the State Government Oral History Program available (in different formats) in the California State Archives here (or here).

Religion Without God

As we learn from the latest issue of The New York Review of Books (April 4, 2013), before his death Ronald Dworkin (December 11, 1931 – February 14, 2013) sent the editors a copy of his last book, Religion Without God, to be published by Harvard University Press later this year. The excerpt from the book’s first chapter in the NYRB appears provocative and promising. I hope to discuss it here at some point, although I may wait until I have the opportunity to read the entire book when it becomes available.

A couple of Jain symbols, or: the sacred and profane

The symbol on top represents the vow of nonviolence (ahiṃsā) in the Jain tradition. The wheel inside represents Dharmachakra (the ‘wheel of Dharma’ common to both Jainism and Buddhism). The picture below it is self-explanatory: I was struck by the resemblance. 

 

This Jain symbol, the Jaina pratīka, was agreed upon by all Jain sects in 1974 and thus officially adopted on the 2,500^th  anniversary of Vardhamāna Mahāvīra’s nirvāṇa. As Wikipedia rightly informs us, Parasparopagraho Jīvānām (परस्परोपग्रहो जीवानाम्), is a Sanskrit sūtra or aphorism of the Jain text Tattvārthasūtra [5.21]. It is closely translated as: souls render service to one another, and taken to imply or mean that all life is bound together by mutual support and interdependence.

Further Reading:

• Jaini, Padmanabh. The Jaina Path of Purification (University of California Press, 1979).
• Long, Jeffrey D. Jainism: An Introduction (I.B. Tauris, 2009).
• Pal, Pratapaditya. The Peaceful Liberators: Jain Art from India (Thames & Hudson, 1994, published in conjunction with an exhibition organized by the Los Angeles County Museum of Art, November 6, 1994—January 22, 1995 [and visited by yours truly]).

The 50th Anniversary of Gideon v. Wainwright

Today is the 50^th anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963), a landmark case in U.S. Supreme Court history in which the Court “unanimously ruled that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorneys, extending the identical requirement made on the federal government under the Sixth Amendment.”

The constitutional right to effective assistance of counsel to indigent defendants remains unmet, in the words of Stephen Bright, “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.” As Monroe H. Freedman, among others, has noted again and again, paltry compensation has failed to attract competent lawyers and court-appointed lawyers are frequently incompetent, more often than not valued by judges for their ability to “move the courts’ calendars quickly by entering hasty guilty pleas in virtually all cases. In those few cases the accused insists on his right to trial by jury, the trials typically move rapidly because the court-appointed lawyers generally file no motions, conduct no investigations, and do little to impede the speedy disposal of the case from charge, to guilty verdict, to imprisonment.”

A “background summary” of the case, courtesy of Street Law:

“Between midnight and 8:00 am on June 3, 1961, a burglary occurred at the Bay Harbor Pool Room in Panama City, Florida. Someone broke a window, smashed the cigarette machine and
jukebox, and stole money from both. Later that day, a witness reported that he had seen Clarence Earl Gideon in the poolroom at around 5:30 that morning. When Gideon was found nearby with a pint of wine and some change in his pockets, the police arrested him and charged him with breaking and entering.

Gideon was a semi-literate drifter who could not afford a lawyer, so at the trial, he asked the judge to appoint one for him. Gideon argued that the Court should do so because the Sixth Amendment says that everyone is entitled to a lawyer. The judge denied his request, ruling that the state did not have to pay a poor person’s legal defense unless he was charged with a capital crime or ‘special circumstances’ existed. Gideon was left to represent himself.

As might be expected, Gideon did a poor job of defending himself. He had done no preparation work before his trial; his choice of witnesses was unusual—for instance, he called police officers who arrested him to testify on his behalf, not having any reason to believe they would help his case. He had no experience in cross-examining a witness in order to impeach that person’s credibility, so his line of questioning was not as productive as a lawyer’s would have been.

Gideon was found guilty of breaking and entering and petty larceny, which was a felony. He was sentenced to five years in a Florida state prison, partly because of his prior criminal record. While in prison, he began studying law in the prison library, believing that his Sixth Amendment rights had been violated when he was denied a defense lawyer paid for by the State. His study of the law led him to file a petition for habeas corpus with the Supreme Court of Florida, which asked that he be freed because he had been imprisoned illegally. After the Supreme Court of Florida rejected his petition, he handwrote a petition for a writ of certiorari to the Supreme Court of the United States, asking that it hear his case. The Court allowed him to file it in forma pauperis, which meant that the Court would waive the fees generally associated with such a petition. Generally, the Court dismisses most of these petitions; Gideon’s was among those that it did not dismiss.

In state criminal trials, are indigent defendants entitled to a lawyer, even in noncapital cases? That was the question the Court agreed to decide when they accepted Gideon’s petition. It was not merely a question of whether Gideon had been treated fairly; the Court’s ruling would affect many other people who faced similar circumstances. In a previous decision, Betts v. Brady (1942), the Court had held that in state criminal trials, an indigent defendant must be
supplied with an attorney only in special circumstances, which included complexcharges and incompetence or illiteracy on the part of the defendant. Since Gideon had not claimed special circumstances, the Court would have to overturn Betts in order to rule in Gideon’s favor. (Florida’s state law provided indigent defendants with lawyers only in capital cases; many other states had laws providing lawyers to most or all indigent defendants.)”

From today’s Los Angeles Times: “Violating the Right to a Lawyer”

By Stephen B. Bright and Sia Sanneh

[….] “Guilty pleas account for about 95% of all criminal convictions. In many courts, poor people are processed through the courts without lawyers or moments after speaking for few minutes with lawyers they just met and will never see again. This is called ‘meet ‘em and plead ‘em’ or ‘McJustice.’

Fifty years ago this week, one of the Supreme Court’s most celebrated cases, Gideon vs. Wainwright, established the right of criminal defendants to have a lawyer. The cases above are stark examples of how that right is violated every day across the nation.

A 2004 American Bar Assn. study reached ‘the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation.’ Since that study, the number of cases has increased, but the number of available lawyers has not. Many poor people are detained in jails after arrest without lawyers for weeks or months. This may cause them to lose their jobs and homes, even if they are eventually not convicted of anything. Even when there is some representation for the poor, the lawyers are often struggling to handle more cases than is humanly possible.

Most states, which are responsible for more than 95% of all criminal prosecutions, have treated the Gideon decision as an unfunded mandate to be resisted. They have little incentive to provide competent lawyers to represent the people they are trying to convict, fine, imprison or execute. Many focus on minimizing costs, awarding the defense of poor people to the lowest bidder, compensating lawyers at meager rates and underfunding public defender programs. This facilitates pleas, speeds up cases and heightens the chances of conviction for anyone accused of a crime.

The cost of disregarding the right to a lawyer is enormous. Innocent people are convicted while the perpetrators remain at large. Important issues, such as the system’s pervasive racism, are ignored. A justice system in which the key actors routinely ignore one of its most fundamental constitutional requirements lacks legitimacy and credibility.

Several things must be done to comply with the constitutional right to counsel and ensure fairness. Adequate funding is essential. One example of what states can accomplish with adequate funding is Colorado’s statewide defender system, in which lawyers are thoroughly trained and supervised and have reasonable workloads and access to investigators, interpreters, social workers and experts. Courts must enforce the right to counsel instead of being complicit in its denial. Trial judges must stop orchestrating ‘meet ‘em and plead ‘em’ processing of people, which involves little or no legal representation. Courts must be responsive to lawsuits challenging deficiencies in representation.

Prosecutors — the most powerful actors in the system — should not exploit the poor quality of defense representation as a strategy for winning cases, as some do. They should instead support efforts to improve it, as Atty. Gen. Eric H. Holder Jr. has done by pointing out the deficiencies in representation and urging reforms.

Finally, the legal profession, the media, law professors, law students and others must hold the system up to public examination until both the spirit and letter of the law in the Gideon ruling is upheld. People facing the loss of life or liberty are entitled to more than McJustice.”

(Stephen B. Bright teaches at Yale Law School and is president and senior Counsel of the Southern Center for Human Rights in Atlanta. Sia Sanneh is a senior fellow at Yale Law School and an attorney with the Equal Justice Initiative in Alabama.) A forthcoming essay from Bright and Sanneh: “Fifty Years of Defiance and Resistance after Gideon v. Wainwright.” 

Prior posts with direct or indirect relevance to the right to counsel:

“The War on the Indigent with the Sword and Shield of Neoliberal Commodification”

“When Innocent Clients Plead Guilty”

“Wrongful Convictions”

“American Violet: A Criminal Justice Story”     

“Gideon’s Trumpet Heard in New York”

Finally, see Monroe Freedman’s provocative article, “An Ethical Manifesto for Public Defenders,” Valparaiso University Law Review, Vol. 39, No. 4 (Summer 2005): 911-923.

Addenda: The virtual silence on this anniversary in the legal blogosphere (at least at the dozen or so law blogs I routinely visit) is disappointing and disconcerting. However, here are several items worth reading:

• Paul Butler, “Gideon’s Muted Trumpet” in The New York Times.
• Andrew Cohen, “So You Want to Learn More About the Gideon Case?,” The Atlantic, March 13, 2013.
• “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” Report of the National Right to Counsel Committee, April 2009 (The Constitution Project)
• Pamela S. Karlan, “Gideon Turns Fifty,” in the Boston Review.
• From the Brennan Center for Justice, “The Right to Counsel 50 Years After Gideon: A Resource Page.”

A just published book: Karen Houppert, Chasing Gideon: The Elusive Quest for Poor People’s Justice (New York: The New Press, 2013). Our younger readers or novice students of the law should first read Anthony Lewis’s “warm, intimate and moving account of a lowly man’s case that became a Constitutional landmark” (Paul A. Freund): Gideon’s Trumpet (Random House, 1964).

The Church & St. Francis

At the New York Times, Timothy Egan writes:

“Though Francis of Assisi is the most popular saint in a long history of tortured bodies and souls, the fact that no pope until Cardinal Jorge Bergoglio would take his name says a lot about the timeless shadow from the 12th century to the 21st. The legacy of the first Francis is almost too much to bear.”

And, at the National Review, the editors engage in what John Holbo at Crooked Timber terms “preemptive damage control,” anxious to inform their readers that the new Roman pontiff’s understanding “of poverty as a social ill should not be misconstrued as sympathy for statist solutions to it or, indeed, as support for any determinate political program.”                                 

In light of the above, we might consider the fate of Liberation Theology and theologians like Leonardo Boff in the recent history of the Church. Boff, author of a biography of St. Francis (1981, in English, 1982), was of course one of those responsible for Liberation Theology and praxis[1] of the sort Ratzinger was instrumental in silencing in his former role as Prefect of the Congregation for the Doctrine of the Faith. Boff writes of the saint’s life and faith as linked
to “leaving imperialism” and the “integral liberation of the oppressed.” Boff tells Catholics that “Poverty is not only a problem of moral conscience; it is fundamentally a political problem.” He reminds them that “Today’s dominant classes, successors to the slave owners as well as the slave traders (English, Portuguese, Dutch, and North American), have inherited a profound scorn for the poor. They consider them to be socially disqualified [think of the reaction of actual and aspiring neo-liberal elites to the Bolivarian revolution]; they avoid contact with them, going around them, insensitive to their misery.” The Church has often had a difficult time understanding with Francis that “being poor” means no only the “voluntary” sort motivated by vicarious identity and solidarity, but rather the poor experienced by the poor themselves, which is the bitter “fruit of impoverishing and exploitative mechanisms. To accept poverty in solidarity with the poor implies opting for social justice, committing oneself to the poor in the integral liberation of all for a more just and fraternal society.”

Catholics and their Church are often blinded to the fact that “we are living in a society of classes with antagonistic interests. Objectively, the poor are poor because the way society is organized, since they have the strength to work but not the capital, they are placed on the margin.” Boff explains to his readers the categorical need for the “structural change of society” [hard to imagine that without State direction or support or sans any ‘determinate political program’]. For Boff, the Church must come out in full support of “movements that are born of the base–free unions, people’s associations” that defend those without power, which includes their culture and rights. Many Catholics and their Church are loath to admit freedom for the poor involves struggle, what Boff understood as nonviolent revolution, not trickle-down reform, and such “Freedom is never freely granted; it must be attained in an arduous process of freedom.” As Boff writes, “Everything in Francis invites practice: exire de saeculo, leaving the imperial system in an alternative act that makes more real devotion toward others, more gentleness with the poor, and greater respect for nature.” The “spirit and way of life” of Francis of Assisi is no mere “formula, idea, or ideal,” but made manifest in social and political practice, individually and collectively.

Read too the works of the late Penny Lernoux (1940–1989) to see why there has never been a pope to take the name of Francis of Assisi. And take a look at the comparative significance of The Catholic Worker movement in Catholicism generally to begin to see why the faith of Francis has been and remains a considerable distance from the Church.

[1] See, for example, Phillip Berryman’s classic introduction, Liberation Theology… (Pantheon Books, 1987). Liberation theology and praxis was able to critically absorb analytical insights from the Marxist tradition, as well as ideas and methods from such individuals as the philosopher Enrique Dussel, and Paulo Freire, a philosopher of education.

Further Reading:

• Barbé, Dominique. Grace and Power: Base Communities and Nonviolence in Brazil. Maryknoll, NY: Orbis Books, 1987.
• Barbé, Dominique. A Theology of Conflict and Other Writings on Nonviolence. Maryknoll, NY: Orbis Books, 1989.
• Berrigan, Daniel. The Steadfastness of the Saints: A Journey of Peace and War in Central and North America. Maryknoll, NY: Orbis Books, 1985.
• Boff, Leonardo. St. Francis: A Model for Human Liberation. New York: Crossroad, 1984.
• Boff, Leonardo and Clodovis Boff. Introducing Liberation Theology. Maryknoll, NY: Oribis Books, 1987.
• Brown, Robert McAfee. Liberation Theology: An Introductory Guide. Louisville, KY: Westminster/John Knox Press, 1993.
• Coles, Robert. Dorothy Day: A Radical Devotion. Reading, MA: Addison-Wesley, 1987.
• Coles, Robert. A Spectacle Unto the World: The Catholic Worker Movement. New York: Viking, 1973.
• Coy, Patrick, ed. A Revolution of the Heart: Essays on the Catholic Worker. Philadelphia, PA: Temple University Press, 1988.
• Douglass, James W. The Nonviolent Cross: A Theology of Revolution and Peace. New York: Macmillan, 1968.
• Douglass, James W. Resistance and Contemplation: The Way of Liberation. Garden City, NY: Doubleday, 1972.
• Dussel, Enrique. A History of the Church in Latin America: Colonialism to Liberation (1492-1979). Grand Rapids, MI: Wm. B. Eerdmans, 1981.
• Ellis, Marc. A Year at the Catholic Worker. New York: Paulist Press, 1979.
• Ellis, Marc. Peter Maurin: Prophet in the Twentieth Century. New York: Paulist Press, 1981.
• Ellsberg, Robert, ed. By Little and By Little: The Selected Writings of Dorothy Day. New York: Alfred A. Knopf, 1983.
• Freire, Paulo. Pedagogy of the Oppressed. New York: Herder and Herder, 1972.
• Gutiérrez, Gustavo (Caridad Inda and John Eagleson, tr.). A Theory of Liberation: History, Politics, and Salvation. Maryknoll, NY: Orbis Books, 1973.
• Lernoux, Penny. The Cry of the People: The Struggle for Human Rights in Latin America—The Catholic Church in Conflict with U.S. Policy. New York: Penguin Books, 1982.
• Míguez Bonino, José. Toward a Christian Political Ethics. Philadelphia, PA: Fortress Press, 1983.
• Musto, Ronald G. The Catholic Peace Tradition. Maryknoll, NY: Orbis Books, 1986.
• O’Connor, June E. The Moral Vision of Dorothy Day: A Feminist Perspective. New York: Crossroad, 1991.
• Roberts, Nancy L. Dorothy Day and the Catholic Worker. Albany, NY: State University of New York Press, 1984.
• Rowland, Christopher, ed. The Cambridge Companion to Liberation Theology. New York: Cambridge University Press, 2007.
• Smith, Christian. The Emergence of Liberation Theology: Radical Religion and Social Movement Theory. Chicago, IL: University of Chicago Press, 1991.

Addendum: For the Church’s position on the indispensable and urgent role of the State with regard to the poor and vulnerable, please see here. As is noted there, “when there is  question of defending the rights of  individuals, the poor and badly off have a  claim to especial  consideration. The richer class have many ways of shielding  themselves, and stand less in need of help from the State; whereas the mass of  the poor have no resources of their own to fall back upon, and must chiefly depend upon the assistance of the State. [....] The  obligation to provide justice for all means that the poor have the single most  urgent economic claim on the conscience of the nation. [....] The needs of the poor take  priority over the desires of the rich;  the rights of workers over the  maximization of profits; the  preservation of the environment over uncontrolled  industrial expansion; the production to meet social needs over production for  military  purposes. [....] The obligation to provide justice for all means that the poor have  the single most urgent economic claim on the conscience of the nation.” The Democrats for some time now have given rhetorical (in campaigns) and strategic priority (in public policy) to appeals to the middle class and their interests, rarely giving voice to the needs of the poor, a lamentable development for a party that once was conspicuous for its role as a defender of the downtrodden. This is yet further evidence of how the spectrum of political discourse has clearly foreshortened in deference to the Right’s ideology.

Hugo Chávez and Chavismo: The Venezuelan Transcendence of Neo-Liberalism

All too often the labels and categories routinely invoked for both descriptive and analytical political discourse in public fora bespeak the noxious effects of intellectual lethargy, ideological calcification, and even the crassness of black-and-white thinking. In part, this reflects the cumulative consequences of a journalistic diet of mass media junk food. This unhealthy dietary regimen has its origins in the mass media’s analogue to factory farming, the products of a “commercial media juggernaut” at once constrained and motivated by capitalist imperatives as politically sanctioned by the most powerful nation-states and enshrined in the globalization of neoliberalism.[1] Perhaps most of these labels and categories are indispensable, with a rightful place in our political language, particularly when discretely or properly applied, but on occasion they prevent or obscure our appreciation of history, of novel socio-economic and political ideas and movements, of the “messiness” or complexity of social reality, in the domestic case or, especially in this instance, in understanding events abroad.  

For a host of reasons we won’t address here, contemporary commercial mass media structurally facilitates and encourages such lethargy, calcification and simplistic thinking, meaning that this need not be the direct result of the manifest individual or collective intentions of editors, and journalists, and even its managers and publishers, but the factors and variables at play in establishing and maintaining this structure assure a comparatively weak and democratically diminished Fourth Estate. For instance, Robert McChesney has noted the corresponding “decline and marginalization of…public service values,”[2] conspicuously evidenced in the precipitous decline of investigative journalism, hence the effort to address this void by an Internet-based non-profit journalistic endeavor like ProPublica. At its website, ProPublica proclaims that

Investigative journalism is at risk. Many news organizations have increasingly come to see it as a luxury. Today’s investigative reporters lack resources: Time and budget constraints are curbing the ability of journalists not specifically designated ‘investigative’ to do this kind of reporting in addition to their regular beats. New models are, therefore, necessary to carry forward some of the great work of journalism in the public interest that is such an integral part of self-government, and thus an important bulwark of our democracy.

It is true that the number and variety of publishing platforms are exploding in the Internet age. But very few of these entities are engaged in original reporting. In short, we face a situation in which sources of opinion are proliferating, but sources of facts on which those opinions are based are shrinking. The former phenomenon is almost certainly, on balance, a societal good; the latter is surely a problem.

More than any other journalistic form, investigative journalism can require a great deal of time and labor to do well—and because the ‘prospecting’ necessary for such stories inevitably yields substantial number of ‘dry holes,’ i.e. stories that seem promising at first, but ultimately prove either less interesting or important than first thought, or even simply untrue and thus unpublishable. Given these realities, many news organizations have increasingly come to see investigative journalism as a luxury that can be put aside in tough economic times. Moreover, at many media institutions, time and budget constraints are curbing the once significant ability of journalists not specifically designated ‘investigative’ to do this kind of reporting in addition to handling their regular beats.[3]

It’s been argued that the problem is far greater than that having to do solely with “investigative journalism, ” encompassing most of what generally falls under the heading of “news gathering” and “news reporting” in this commercial media juggernaut. Media ownership concentration[4] is one source of key structural factors and variables responsible for either causing or accelerating deleterious trends in this regard, making mincemeat of our designs and hopes for a media fashioned to serve the means and purposes of a democratic polity, one designed to address, in other words, the nutritional informational and knowledge needs of a democratic civil society struggling to free itself from servile and obsequious relations to the aristocracy of Capital and the dictates of the National Security State.

All of this by way of setting the table for an attempt to make sense of the Venezuelan presidency (1999-2013) and legacy—largely but not solely as Chavismo—of Hugo Chávez (28 July 1954 – 5 March 2013).[5]  Two of the articles we’ll mention could be considered exceptions to the generalizations above: perhaps the foremost being the New York Times’ decision to publish a cogent, fitting and fair memorial op-ed by Luiz Inácio Lula de Silva, the former president of Brazil (2003-2010), and a short Los Angeles Times article on why Venezuela’s poor came to discover ample reason to demonstrate their loyal support and affection for a man whom pundits, intellectuals, and politicians of the privileged caricatured and derisively dismissed with a perfervid rhetoric that reveled in ritualistic references to a “tin pot caudillo,” a “conspiracy theorist,” a “megalomaniac,” a demagogic buffoon of authoritarian manner if not dictatorial pretension. Whatever the grains of truth found in such characterizations, they serve in the end to ideologically obscure and distort attempts to accurately assess the socioeconomic and political legacy of Chávez and Chavismo in Venezuela, including its possible enduring contribution to Leftist politics and movements throughout Latin America. The reality of that legacy is rather more complex and perhaps a bit fuzzy, and it is undoubtedly far more interesting than suggested by such rhetoric.

No less than Christopher Hitchens indulged in the assumptions and premises of this discourse, thereby precluding a full appreciation of the fact that, “especially in the areas of public health, housing and education, [Chávez] succeeded in improving the standard of living of tens of millions of Venezuelans,”[6] or that his “government reduced extreme poverty by 70 percent,”[7] or that (while not entirely successful) imaginative and courageous experiments were initiated by the State in the form of Community Councils constituted “to oversee local social-welfare projects…[that] quickly turned into sites of real democratic debate, electing delegates and empowering people who previously didn’t have any say over the decisions that structured their lives.”[8] Hitchens preferred instead to draw our attention elsewhere, homing in on the Venezuelan president’s putative “politicized necrophilia” (with regard to Simón Bolívar), serving his readers the journalistic equivalent of the social class and status converse of voyeuristic and vicarious slumming, narrating the juicy details of his up-close-and-personal verification of anecdotal evidence that “[Chávez] does have an idiotic weakness for spells and incantations, as well as many of the symptoms of paranoia and megalomania.”[9] Would it have been unreasonable to expect Hitchens to engage his journalistic prowess on behalf of old-fashioned slumming so as to give voice to the Venezuelan poor, as did the writers in our LA Times piece:  

Maria Eugenia Mendoza, a 55-year-old special education teacher, held aloft a Chavez poster Wednesday afternoon and sported, like so many others, a bright red T-shirt, the sartorial symbol of Chavez’s socialist project. Before Chavez, she said, the children she works with had been marginalized. Their classroom was a run-down warehouse. Their school supplies were scant. ‘Poor, handicapped students were forgotten until he came to power. They suffered from a total lack of focus by the government,’ said Mendoza, a teacher for 25 years. ‘Under Chavez there was a complete change. We now have a new school, curriculum, diagnostic equipment, trips and even sports programs. ‘He gave us hope,’ she said. ‘That’s why I am a Chavista.’[10]

Had the good doctor Hitchens resisted the temptation to indulge in amateur diagnosis under the cover of tabloid journalism, he might have informed his readers that Chávez “filled bellies, stocked classrooms, and tended to the ill,”[11] in spite of his all-too-human shortcomings.

In The Nation, NACLA (North American Congress on Latin America) executive editor Greg Grandin shares another example of recalcitrant ideological obscurantism entrenched across the prevailing political spectrum of Mirabeau’s “geography of the Assembly:”

Latin American populists, from Argentina’s Juan Perón to, most recently, Chávez, have long served as characters in a story the US tells about itself, reaffirming the maturity of its electorate and the moderation of its political culture. There are at most eleven political prisoners in Venezuela, and that’s taking the opposition’s broad definition of the term, which includes individuals who worked to overthrow the government in 2002, and yet it is not just the right in this country who regularly compared Chávez to the worst mass murderers and dictators in history. New Yorker critic Alex Ross, in an essay published a few years back celebrating the wunderkind Venezuelan conductor of the Los Angeles Philharmonic, Gustavo Dudamel, fretted about enjoying the fruits of Venezuela’s much-lauded government-funded system of music training: ‘Stalin, too, was a great believer in music for the people.’[12]

Bhaskar Sunkara, a senior editor at In These Times and the talented and articulate founding editor of Jacobin magazine, one of the premier periodicals on the Left, wrote a piece last year, “Postmodern Perón: Hugo Chávez and the new face of Latin American populism,”[13] that properly located Chavismo within the history of the Left in Latin America and in particular within the region’s well known tradition of populism.[14] Sunkara rightly describes the electoral victory that brought Chávez’s fourth term as Venezuela’s president—a term diminished by his illness and shortened by his death—as a “victory for progressive forces in his country,” a significant cause for celebration even if the Bolivarian Revolution[15] is, at turns, erratic and contradictory, “both authoritarian and democratic, demagogic and participatory.”

With Sunkara, we can readily concede that “some of the criticism of Chávez is justified,” which should surprise no one. At the same time, it is “undeniable” yet eminently understandable “that facing hostility in the media and an entrenched elite, the president at times used executive power to circumvent political opposition.” And while Chávez was clearly a leftwing populist in the Latin American tradition, he was “one distinctly more radical—if less predictable—than those who came before him.” If, after Hitchens, we find Chávez exhibited “symptoms” of paranoia, we might forgive him, fully aware that the U.S. backed the coup d’état of April 11, 2002 which “appeared to spell the end of the Chávez moment.” In the words of Sunkara,

The hubris of the reactionaries was astounding, and mainstream Venezuelan media outlets, complicit to varying degrees, at the very least could not hide their delight. Pedro Carmona, president of the Venezuelan Federation of Chambers of Commerce, was installed as interim president, and the National Assembly, Supreme Court and 1999 Constitution were dissolved to rousing applause. The United States and Spain rushed to establish relations with the new government. The event, framed in Orwellian terms by much of the Latin American Right, was a ‘triumph for democracy.’ But the opposition underestimated the support Chávez still had among the Venezuelan poor. A spontaneous mass uprising by hundreds of thousands of people outside the Miraflores Palace and the revolt of Chavista officers within turned the table on the plotters. Within 47 hours the government was restored, but extra-parliamentary resistance to the regime continued.[16]

   The palpable fear and hostility one senses from the usual strata and quarters in this country and in parts of Latin America is irrational to the extent it arises from Chávez’s (late-blooming) conversion to socialism, which found him “more committed to redistributing wealth and power than just about any Latin American who came before him” (Sunkara). Chávez, as Sunkara well explains, was neither a despot nor a saint, as sober assessments by Sunkara, Lula, and Grandin, among others, attest:

‘Chavez was more than just an image to us. He was a very human figure who worked to improve our lives,’ said information technology engineer Vicente Rodriguez, 47. ‘Before, I couldn’t have cared less about politics, but he got me involved and interested in working for the common good.’ Rodriguez said he donated part of his time as an adult-education consultant. [….]

‘The poor were the forgotten ones before Chavez took office. Now we are visible, and the government has given us power we never had before,’ said Francisco Umbria, a retired municipal employee who stood in the massive crowd, waiting for the casket to roll by. ‘Only people who are forgotten die, and Chavez will never be forgotten, not for 100 years.’[17]

Notes:

[1] Some of the relevant literature can be gleaned from the compilation I made here: Mass Media: Politics, Political Economy, & Law—A Select Bibliography.

[2] Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times (The New Press, 2000).

[3] http://www.propublica.org/about/ .

[4] There are several works one might cite here but see, for example, C. Edwin Baker’s Media Concentration and Democracy: Why Ownership Matters (Cambridge University Press, 2007).

[5] A rather critical assessment: Tillman Clark, “Chavismo: The Re-Emergence of Progressive Populism in Venezuela,” (June 12, 2010) at Venezuelanalysis.com. At this site you’ll also find a wide array of articles (‘opinion & analysis’) discussing the life and legacy of Chávez. See too, Josh Watts, “The British Press on the Death of Chávez,” at the New Left Project, and from FAIR (Fairness & Accuracy in Reporting), “In Death as in Life, Chávez Target of Media Scorn.”

[6] Luiz Inácio Lula de Silva, “Latin America after Chávez,” The New York Times (March 6, 2013). Available: http://www.nytimes.com/2013/03/07/opinion/latin-america-after-chavez.html?hp&_r=1& . 

[7] Bhaskar Sunkara, “Chávez: Despot or Saint?,” VICE (no date), available: http://www.vice.com/read/chavez-despot-or-saint . 

[8] Ibid.

[9] Christopher Hitchens, “Hugo Boss,” Slate (posted March 5, 2013, originally written in 2010). Available: http://www.slate.com/articles/news_and_politics/fighting_words/2010/08/hugo_boss.single.html .

[10] “Among Venezuela’s poor, Hugo Chávez ‘will never be forgotten,’” Los Angeles Times (March 6, 2013), available: http://articles.latimes.com/2013/mar/06/world/la-fg-venezuela-mourners 20130307.

[11] Ibid.

[12] Greg Grandin, “On the Legacy of Hugo Chávez,” The Nation (March 5, 2013), Available: http://www.thenation.com/article/173212/legacy-hugo-chavez# .

[13] Bhaskar Sunkara, “Postmodern Perón: Hugo Chávez and the new face of Latin American populism,” In These Times (online) (October 10, 2012), available: http://inthesetimes.com/article/13983/hugo_chavez_postmodern_peron/ .

[14] As Jorge E. Castañeda noted in his classic study, Utopia Unarmed: The Latin American Left after the Cold War (Alfred A. Knopf, 1993), “There is an abundance of literature on populism in Latin America.” Among the works in English listed as “most frequently quoted:” Torcuato di Tella, “Populism and Reform in Latin America,” in Claudio Veliz, ed., Obstacles to Change in Latin America (Oxford University Press, 1965), Ghita Ionescu and Ernest Gellner, Populism: Its Meaning and National Characteristics (Weidenfeld and Nicolson, 1969), and Paul W. Drake, Socialism and Populism in Chile, 1932-52 (University of Illinois Press, 1978). See too two titles edited by Michael L. Conniff: Latin American Populism in Comparative Perspective (University of New Mexico Press, 1982) and Populism in Latin America (University of Alabama Press, 1999), as well as Rudiger Dornbusch and Sebastian Edwards, eds., The Macroeconomics of Populism (University of Chicago Press, 1991). For a more recent collection of titles, see David Leaman’s review essay, “Changing Faces of Populism in Latin America: Masks, Makeovers, and Enduring Features,” Latin American Research Review, Vol. 39, No. 3 (October 2004): 312-326, available: http://lasa 4.univ.pitt.edu/LARR/prot/fulltext/vol39no3/Leaman.pdf. Finally, see Anastasia Moloney’s essay, “The Challenge of South America’s Populist Left,” World Politics Review (12 January 2009): http://www.worldpoliticsreview.com/articles/3146/the-challenge-of-south-americas-populist-left .

[15] See, for example, Iain Bruce, The Real Venezuela: Making Socialism in the 21st Century (Pluto Press, 2008), Gregory Wilpert, Changing Venezuela by Taking Power: The History and Policies of the Chávez Government (Verso, 2006), Carlos Martinez, Michael Fox, and JoJo Farell, eds., Venezuela Speaks! Voices from the Grassroots (PM Press, 2010), and George Ciccariello-Maher, We Created Him: A People’s History of the Venezuelan Revolution (Duke University Press, 2013).

[16] See supra note 13.

[17] See supra note 10.

Addenda:  I just finished reading a concise, incisive, historically sensitive and politically astute account of the accomplishments and the difficulties faced by the Bolivarian revolution in Venezuela with regard to its constitution, urban/rural issues, political leadership, poverty, democratic participation, cultural context, and the like, in Vijay Prashad’s indispensable volume, The Poorer Nations: A Possible History of the Global South (Verso: 2012): 258-278.

See too: “50 Truths about Hugo Chavez and the Bolivarian Revolution.” Indisputably remarkable.

Death & Rebirth in Buddhism: Basic Literature

Please note: Today there are organized and unaffiliated but self-described “secular” and “rationalist” Buddhists who do not believe in the traditional Buddhist metaphysical doctrines of karma and rebirth (some of the individuals so identified share and exhibit the passions of the ‘new atheists’). On ocassion one even finds the argument that the Buddha himself did not teach such doctrines (or that these were late accretions of the ‘superstitious’ sort)! Others are merely agnostic, yet no less disinclined to believe in karma and rebirth. I have not included literature from this alleged class of Buddhists. Two aptly titled works that best exemplify this endeavor to reductively reconstruct Buddhism on purely rationalist and scientific premises, shorn of religious “hocus pocus” or supernaturalist metaphysics and thus arguably closer to secular humanism than conventional or traditional religion, are Stephen Batchelor’s enormously influential book, Buddhism Without Beliefs: A Contemporary Guide to Awakening (1997), and the philosopher Owen Flanagan’s volume, The Bodhisattva’s Brain: Buddhism Naturalized (2011).

Basic introductions:

• Gethin, Rupert. The Foundations of Buddhism. New York: Oxford University Press, 1998.
• Harvey, Peter. An Introduction to Buddhism: Teachings, History and Practices. Cambridge, UK: Cambridge University Press, 1990.

Important background material:

• Bhikkhu, Thanissaro. The Truth of Rebirth: And Why It Matters for Buddhist Practice (2013). Available: http://www.accesstoinsight.org/lib/authors/thanissaro/truth_of_rebirth.html
• Neufeldt, Ronald W., ed. Karma and Rebirth:  Post-Classical Developments. Albany, NY: State University of New York Press, 1986.  
• O’Flaherty, Wendy Doniger, ed. Karma and Rebirth in Classical Indian Traditions. Berkeley, CA: University of California Press, 1980.
• Phillips, Stephen. Yoga, Karma, and Rebirth: A Brief History and Philosophy. New York: Columbia University Press, 2009.

Important discussions of rebirth throughout both of these books (see indices):

• Collins, Steven. Selfless Persons: Imagery and Thought in Theravāda Buddhism. Cambridge, UK: Cambridge University Press, 1982.
• Harvey, Peter. The Selfless Mind—Personality, Consciousness and Nirvāna in Early Buddhism. London: Curzon Press, 1995.

Essential for understanding rebirth from the perspective of Tibetan Buddhism:

• Lati Rinbochay and Jeffrey Hopkins. Death, Intermediate State and Rebirth in Tibetan Buddhism. New York: Snow Lion, 1979.
• Sogyal, Rinpoche (Patrick Gaffney and Andrew Harvey, eds.). The Tibetan Book of Living and Dying. San Francisco, CA: HarperSanFrancisco, 2002 ed.
• Thondup, Tulku. Peaceful Death, Joyful Rebirth: A Tibetan Buddhist Guidebook. Boston, MA: Shambhala, 2005.
• Thubten Zopa, Rinpoche, and Kathleen McDonald. Wholesome Fear: Transforming Your Anxiety about Impermanence and Death. Somerville, MA: Wisdom Publications, 2010.
• Wilson, Martin. Rebirth and the Western Buddhist. London: Wisdom Publications, 2nd ed., 1987.

Additional Titles:

• Becker, Carl B. Breaking the Circle: Death and the Afterlife in Buddhism. Carbondale, IL: Southern Illinois University Press, 1993.
• Boisvert, M. “Death as a Meditation Subject in Theravada Buddhism,” Buddhist Studies Review 13, 1996, No. 1: 37-54.
• Chagdud Tulku Rinpoche. Life in Relation to Death. Junction City, CA: Padma Publ., 2nd ed., 2000.
• Evans-Wentz, W.Y., ed. The Tibetan Book of the Dead. Oxford, UK: Oxford University Press, 3rd ed., 1960.
• Freemantle, Francesca. Luminous Emptiness: Understanding the Tibetan Book of the Dead. Boston, MA:  Shambhala, 2001.
• Jayatilleke, K.N. Survival and Karma in Buddhist Perspective. Kandy, Sri Lanka: Buddhist Publication Society, 1969. Available online: http://www.bps.lk/olib/wh/wh141.pdf
• Kapleau, Philip. The Wheel of Death. London: George, Allen and Unwin, 1972.
• Kapleau, Philip. The Zen of Living and Dying: A Practical and Spiritual Guide. Boston, MA: Shambhala, 1997.
• Langer, Rita. Buddhist Rituals of Death and Rebirth: Contemporary Sri Lankan Practice and Origins. New York: Routledge, 2007.
• Mullin, Glenn H. Death and Dying: The Tibetan Tradition. Boston, MA: Arkana, 1986.

For my earlier compilation on “death and dying” (sans the topic of rebirth) more broadly, please see here.

A Documentary on Hunger in America

A Place at the Table” takes on hunger in the U.S.

Filmmakers Kristi Jacobson and Lori Silverbush’s new documentary examines the politics and possible ways out.

By John Horn, Los Angeles Times (February 28, 2013)

When people think of hunger, they might picture a starving Third World child. The makers of the new documentary ‘A Place at the Table’ suggest the face of undernourishment can be found much closer to home: Tens of millions of U.S. citizens go to bed hungry every night. ‘Americans are for the most part unaware of how vast the problem is,’ said Kristi Jacobson. She co-directed the film, which premieres in limited release this weekend, with Lori Silverbush, who added, ‘You can’t see hunger in America.’

In keeping with the modern wave of activist non-fiction filmmaking, ‘A Place at the Table’ is no impartial documentary — albeit without a Michael Moore-like rabble rouser. Instead, it is a combination primer and jeremiad, an investigation into how a country with so many resources nevertheless has 16% of its population living in households that struggle with hunger and how federal subsidies benefit agribusiness at the expense of the public’s well-being.

While laying out possible solutions, ‘A Place at the Table’ strongly suggests inaction is the worst possible path, particularly because of hunger’s grave health consequences. ‘The cost to the nation is astronomical,’ Jacobson said.

The movie’s genesis was a phone call Silverbush and her husband, the New York-based chef and ‘A Place at the Table’ executive producer Tom Colicchio, received from a middle school principal.

The couple were mentoring a 12-year-old, and the administrator was on the line to report that the student was rummaging through the trash looking for food. She was one of the invisibly hungry: To unsuspecting eyes, she looked well fed but was actually among more than 16 million U.S. children suffering from hunger or ‘food insecurity,’ a condition where the prospects of filling, healthful meals are doubtful. ‘She was absolutely the poster child for malnutrition,’ Silverbush said of the student, who had suffered from developmental delays and fell asleep in class. [….]

As the film (and a companion book) point out, the U.S. Department of Agriculture found that nearly 14 million Americans lived in such food deserts, where they have low access to supermarkets or large grocery stores. At the same time, low-income and even working-class families can’t afford to buy fresh produce and quality proteins to feed themselves. If you have only a few dollars to eat, in other words, processed foods will fill you up far cheaper than fruits and vegetables. Federal subsidies, the movie argues, help already profitable large farmers keep ingredient costs down for processed foods, while the smaller farmers who plant produce don’t enjoy similar support. ‘We are spending $20 billion a year on agriculture subsidies for the wrong foods,’ Marion Nestle, a nutrition professor at New York University, says in the film. ‘And $20 billion would go a very long way to promoting a healthy, educated population, starting with kids.’

Those facts combine to illustrate ‘A Place at the Table’s’ dramatic linking of obesity to the high cost and scarcity of nutritional food. Hunger and heft, in other words, are symptoms of the same problem. As the film points out, the price of fruits and vegetables has gone up about as much over the last three decade as the price of processed foods has declined. It’s why a single peach can cost about the same as a Whopper. And that, in turn, is partly driving the nation’s obesity epidemic. [….]

See too Susan Schneider’s post on the film at the Agricultural Law blog which speaks to its available formats and has a trailer as well.  

Genocide: A Select Bibliography

There’s a little bit of everything here: legal, sociological, historical,* and philosophical approaches to and dimensions of genocide, as well as several works that focus on specific and well-known cases of genocide in the twentieth century. In a forthcoming post I’ll introduce some material from Larry May’s (characteristically) incisive normative examination (below) of the moral and legal concept of genocide, in part, because I’m interested in the notion of “cultural genocide,” which lacks full-fledged legal recognition as a distinct crime in international criminal law. In turn, I hope even further down the road to discuss cultural genocide in Tibet, especially by way of accounting for the resort to self-immolation as a form of (largely) religiously motivated or sanctioned (in this instance) political protest. I welcome suggestions for additional entries to this (‘select’) list.

• Amann, Diane Marie, “Group Mentality, Expressivism, and Genocide,” International Criminal Law Review, Vol. 2, 2 (2002): 93-143, 2002. Available: http://ssrn.com/abstract=1006594.
• Bailyn, Bernard. The Barbarous Years—The Peopling of British North America: The Conflict of Civilizations, 1600-1675. New York: Alfred A. Knopf, 2012.
• Benesch, Susan, “Vile Crime or Inalienable Right: Defining Incitement to Genocide,” Virginia Journal of International Law, Vol. 48: 3 (2008): 485-528.
• Card, Claudia, and Arman T. Marsoobian, eds. Genocide’s Aftermath. Oxford, UK: Blackwell, 2007.
• Chalk, Frank, and Kurt Jonassohn. The History and Sociology of Genocide. New Haven, CT: Yale University Press, 1990.
• Davidson, Lawrence. Cultural Genocide. New Brunswick, NJ: Rutgers University Press, 2012.
• Donnelly, Jack. “Genocide and Humanitarian Intervention,” Journal of Human Rights, Vol. 1, No. 1 (March 2002): 93-109.
• Gourevitch, Philip. We wish to inform you that tomorrow we will be killed with our families: Stories from Rwanda. New York: Picador, 1998.
• Greenawalt, Alexander. “Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation,” Columbia Law Review, Vol. 99 (1999): 2259-2294.
• Grunfeld, Fred, and Anke Huijboom. The Failure to Prevent Genocide in Rwanda: The Role of Bystanders. Leiden: Martinus Nijhoff, 2007. 
• Hochschild, Adam. King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa. Boston, MA: Houghton Mifflin, 1998.
• International Campaign for Tibet (Report). “60 Years of China Misrule: Arguing Cultural Genocide in Tibet.” Washington, DC: International Campaign for Tibet, 2012. 
• Jones, Adam. Genocide: A Comprehensive Introduction. New York: Routledge, 2006.
• Kiernan, Ben. The Pol Pot Regime: Race, Power, and Genocide under the Khmer Rouge, 1975 79. New Haven, CT: Yale University Press, 3rd ed., 2008.
• Lang, Berel. Act and Idea in the Nazi Genocide. Chicago, IL: University of Chicago Press, 1990.
• Lemkin, Raphael. Axis Rule in Occupied Europe, Laws of Occupation, Analysis of Government, Proposals for Redress. Washington, DC: Carnegie Endowment for World Peace, 1944.
• Luban, David. “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report,” Chicago Journal of International Law, Vol. 7, No. 1 (Spring 2006): 1-18.
• Mamdani, Mahmood. When Victims become Killers: Colonialism, Nativism, and the Genocide in Rwanda. Princeton, NJ: Princeton University Press, 2001.
• May, Larry. Genocide: A Normative Account. New York: Cambridge University Press, 2010.
• Newman, Leonard S., and Ralph Erber, eds. Understanding Genocide. New York: Oxford University Press, 2002.
• Pendas, Devin O. The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law. New York: Cambridge University Press, 2006.
• Power, Samantha. “A Problem from Hell:” America and the Age of Genocide. New York: HarperCollins, 2002.  
• Prunier, Gérard. The Rwanda Crisis: History of a Genocide. New York: Columbia University Press, 1995.
• Quigley, John. The Genocide Convention: An International Law Analysis. Burlington, VT: Ashgate, 2006.
• Ramji [now: Ramji-Nogales], Jaya, and Beth Van Schaack, eds. Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts. Lewiston, NY: Edwin Mellen Press, 2005.
• Rosenbaum, Alan S., ed. Is the Holocaust Unique? Boulder, CO: Westview Press, 2001.
• Schabas, William. A. Genocide in International Law: The Crime of Crimes. New York: Cambridge University Press, 2nd ed., 2009.
• Shaw, Martin. What is Genocide? Cambridge, UK: Polity Press, 2007.
• Shelton, Dinah, ed. Encyclopedia of Genocide and Crimes against Humanity, 3 Vols. Detroit, MI: Macmillan Reference, 2005.
• Waller, James. Becoming Evil: How Ordinary People Commit Genocide and Mass Killing. New York: Oxford University Press, 2002.
• Wouters, Jan, and Sten Verhoeven. “The Prohibition of Genocide as a Norm of Ius Cogens and Its Implication for Enforcement of the Law of Genocide,” Institute for International Law, Working Paper No. 69 (January 2005), Available: http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP69e.pdf

See too the literature available from the Genocide Studies Program at Yale University.

* For an introductory catalogue of cases: actual, possible, and unlikely, please see the Wiki entry on “Genocides in history.”

For those wanting an introduction to the basics of international criminal law, I recommend the following five volumes:

i)   Cassese, Antonio. International Criminal Law. New York: Oxford University Press, 2nd ed., 2008.

ii)   Cassese, Antonio, Editor-in-chief. The Oxford Companion to International Criminal Justice. New York: Oxford University Press, 2009.

iii)  Cassese, Antonio A., Guido G. Acquaviva, Mary D. Fan, and Alex A. Whiting. International Criminal Law: Cases & Commentary. New York: Oxford University Press, 2011.

iv)  Cryer, Robert, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst. An Introduction to Criminal Law and Procedure. New York: Cambridge University Press, 2007.

v)   Werle, Gerhard. Principles of International Criminal Law. The Hague, The Netherlands: T∙M∙C∙ Asser Press, 2nd ed., 2009.

Image: “Meo Soknen, 13, stood inside a small shrine full of human bones and skulls, all victims of the Khmer Rouge…in Kandal Province, Cambodia” (2009). (Heng Sinith/Associated Press)

Toward an Understanding of Self-Immolation (as ‘fire suicide’ or ‘auto-cremation’): A Basic Reading Guide

I’ve been doing a bit of research for a forthcoming post on self-immolation in Tibet and I thought I’d share some basic source material (I may add to this list if I come across anything else worthy of inclusion).

• Benn, James A. Burning for the Buddha: Self-Immolation in Chinese Buddhism. Honolulu, HI: University of Hawai’i Press, 2007.
• Benn, James A. “The Lotus Sūtra and Self-Immolation,” in Jacqueline I. Stone and Stephen F. Teiser, eds. Readings of the Lotus Sūtra. New York: Columbia University Press, 2009: 107-131.
• Benn, James A. “Multiple Meanings of Buddhist Self-Immolation in China—A Historical Perspective,” Revue d’Etudes Tibétaines, no. 25 (Décembre 2012): 203-212.
• Biggs, Michael. “Dying Without Killing: Self-Immolations, 1963-2002,” in Diego Gambetta, ed. Making Sense of Suicide Missions. New York: Oxford University Press, 2005: 173-208.
• Biggs, Michael. “How Suicide Protest Entered the Repertoire of Contention,” Sociology Working Papers, No. 2012-03, Department of Sociology. Available: http://users.ox.ac.uk/~sfos0060/repertoire.pdf
• Biggs, Michael. “Self-Immolation in Context, 1963-2012,” Revue d’Etudes Tibétaines, no. 25 (Décembre 2012): 143-150.
• Biggs, Michael. “Ultimate Sacrifice: What’s the Difference between Self-Immolation and Suicide Bombers?,” Foreign Policy (December 3, 2012). Available:  http://www.foreignpolicy.com/articles/2012/12/03/ultimate_sacrifice
• Cholbi, Michael, “Suicide,” The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/win2012/entries/suicide/   
• Hope, Marjorie. “The Reluctant Way: Self-Immolation in Vietnam,” The Antioch Review, 27 (1967): 149-163.
• International Campaign for Tibet Report. “Storm in the Grasslands: Self-Immolations in Tibet and Chinese Policy.” Washington, DC, 2012. Available: http://www.savetibet.org/resource-center/ict-publications/reports/storm-grasslands self-immolations-tibet-and-chinese-policy
• King, Sallie B. “They Who Burned Themselves for Peace: Quaker and Buddhist Self-Immolators during the Vietnam War,” Buddhist-Christian Studies, 20 (2000): 127-150.
• Verini, James. “A Terrible Act of Reason: When Did Self-Immolation Become the Paramount Form of Protest?,” The New Yorker (May 16, 2012). Available: http://www.newyorker.com/online/blogs/culture/2012/05/history-of-self immolation.html
• Yun-hua, Jan. “Buddhist Self-Immolation in Medieval China,” History of Religions, 4 (1964-1965): 243-265.

 Image: Manish Swarup/Associated Press

Axe Handles (in honor of a friend's birthday)

I sent the following poem, one of my favorite by Gary Snyder, to our friend Pico Iyer on his birthday.           

                    Axe Handles

One afternoon the last week in April

Showing Kai how to throw a hatchet

One-half turn and it sticks in a stump.

He recalls the hatchet-head

Without a handle, in the shop

And go gets it, and wants it for his own.

A broken-off axe handle behind the door

Is long enough for a hatchet,

We cut it to length and take it

With the hatchet head

And working hatchet, to the wood block.

There I begin to shape the old handle

With the hatchet, and the phrase

First learned from Ezra Pound

Rings in my ears!

“When making an axe handle

     the pattern is not far off.”

And I say this to Kai

“Look: We’ll shape the handle

By checking the handle

Of the axe we cut with—”

And he sees. And I hear it again:

It’s in Lu Ji’s Wen Fu, fourth century

A.D. “Essay on Literature”—in the

Preface: “In making the handle

Of an axe

By cutting wood with an axe

The model is indeed near at hand.”

My teacher Shih-hsiang Chen

Translated that and taught it years ago

And I see: Pound was an axe,

Chen was an axe, I am an axe

And my son a handle, soon

To be shaping again, model

And tool, craft of culture,

How we go on.

—Gary Snyder, from Axe Handles: Poems by Gary Snyder (New York: North Point Press, 1983)

The Selfless Heroism of Four Chaplains (or the vicissitudes of religious faith and virtues)

After learning this weekend of yet another horrible scandal in the Catholic Church, this time involving the disgraced Cardinal Mahony, I was pleased to read something in a different key in this morning’s paper:

The story by Steve Chawkins is from today’s Los Angeles Times:

“For a long time, the story of the four chaplains was everywhere. In classrooms, posters showed the men of different faiths, arms linked in prayer, braced against the waves engulfing the deck of their torpedoed troop ship on Feb. 3, 1943. They had given their life preservers to frantic soldiers and urged troops paralyzed with fear to jump into the icy North Atlantic before they were sucked down by the sinking ship’s whirlpool.

A postage stamp in 1948 honored the two Protestant ministers, the Catholic priest and the rabbi. Streets and schools soon were named after them, a chapel in Philadelphia dedicated to them, books written about them. Testimonials to their self-sacrifice were lavish; President Truman said, ‘I don’t think in the history of the world that there has been anything in heroism equal to this. It was the greatest sermon ever preached.’

But 70 years after one of World War II’s most celebrated episodes, the story has faded, kept alive these days mainly by veterans groups, history buffs and family members of the 672 men who died in the sinking of the ill-fated Dorchester. Only 230 survived. The last among them died Jan. 12 at age 91.

Aboard the Queen Mary in Long Beach, the tiny Immortal Chaplains Memorial Sanctuary is a reminder that the old luxury liner ferried Allied troops in World War II. A few artifacts sit in display cases: a map, a signal light from a life jacket, a harmonica that belonged to a German submarine officer. The Queen Mary also ferried prisoners of war from the battlefields of Europe to camps in North America.

On a continuous loop, the deep, plummy voice of actor David Fox-Brenton tells the Dorchester’s story: ‘It was to be the third-largest loss of life at sea for the United States in World War II. On board were almost 1,000 men — and four immortal chaplains....’

Fox-Brenton, who lives in Mission Viejo, is a nephew of one of the heroic quartet, Methodist chaplain George Fox. In 2000, Fox-Brenton introduced Dorchester survivors to former crew members of U-223, the Nazi submarine that attacked their ship. One of them, Gerhard Buske, played ‘Amazing Grace’ on his harmonica — an instrument that he had played aboard the sub and later donated to the museum.

‘It was a very emotional time,’ Fox-Brenton said. He started the Queen Mary tribute in 2005 after realizing about a decade before that his uncle and the three others were fast becoming unknowns.” [….] The rest of the story is here.

The National Security State: It’s Secret

At Concurring Opinions, Danielle Citron writes:

“Recall after President Obama’s first inauguration the fuss made about his administration’s commitment to transparent government.  The January 2009 Open Government memorandum seemed a fresh start for openness in the post-9/11 era.  Now, four years later, drastic change in government secrecy has not materialized.”

It may turn out that some semblance of “progress” will be made on this or that front by the Obama administration when it comes to increased transparency, but I suspect, for structural reasons as it were, that this is a problem with no easy or imminent resolution. Why? Because I believe with Garry Wills in Bomb Power: The Modern Presidency and the National Security State (2010), that this lack of transparency is one necessary consequence of, and thus now intrinsic to, the concentration of power in the executive branch since World War II, when our government became largely transformed into a National Security State (in the sense that national security presumptions, perceptions, and imperatives have been accorded an extra-constitutional power to trump those virtues of governance associated with liberal-democratic regimes). To be sure, the “war on terror” and the inchoate insecurities associated with being a declining imperial power (in no small measure because neoliberal capitalist globalization lacks nationalist subservience and loyalty*) serve as variables that exacerbate these structural features, and the power of money to corrupt our politics serves to distract those who represent us from attending to what truly matters for democratic governance in our time and place. As Wills writes,

“[T]he momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration [although Yoo and others shamelessly endeavored to give it an historico-legal imprimatur]. The whole history of America since World War II caused an inertial rolling of power toward the executive branch. The monopoly on use of nuclear weapons, the cult of the Commander in Chief, the worldwide web of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the whole National Security State, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that melded World War II and the Cold War with the war on terror—all these make a vast and intricate structure that may not yield to efforts at dismantling it. [….] A president is greatly pressured to keep all the empire’s secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the Bomb, a modern President cannot not use his huge power base. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.”

* National self-deception and states of denial at both ends of the political spectrum (such as it is) continue to afflict the powers-that-be with regard to the end of the “white man’s burden” and the shattering of the messianic complex. Those with avowed commitments to liberal values and the principles and practices of democracy will have to acquire heretofore elusive habits and virtues should they wish to avoid interminable violent conflicts and maintain (or increasingly attain) a reasonable level of “universal” welfare and well-being, one no longer dependent on exploiting the resources and vulnerabilities of others around the planet (or the planet itself, for that matter). The writing is on the wall, but it’s seen as indecipherable graffiti: Charles A. Kupchan, No One’s World: The West, the Rising Rest, and the Coming Global Turn (Oxford University Press, 2012).

Erich Fromm: Spiritual Humanist & Public Intellectual

Erich Fromm’s writings (academic and otherwise) reliably display his considerable personal and intellectual merits and powers as a clinician, social psychologist, and existential humanist. In the history of psychoanalysis, Fromm is aptly classified by Daniel Burston as among Freud’s “loyal opposition,” that is, “those analysts whose loyalties to Freud prompted them to stay within the organizational framework of psychoanalysis despite their disagreements with him on important issues and despite the diminished trust, esteem, and credibility they often suffered among their colleagues as a consequence.” This group is further divided by Burston into “independent analysts” (e.g., Sandor Ferenczi and Karen Horney), “object relations” theorists (e.g., W.D. Fairbairn and Harry Guntrip), and “Freudo-Marxists” like Wilhelm Reich, Otto Fenichel, and of course Fromm
himself.

A remarkable new examination of Fromm’s life and work by Lawrence J. Friedman (assisted by Anke N. Schreiber), The Lives of Erich Fromm: Love’s Prophet (New York: Columbia University Press, 2013), is justly described as “riveting,” “entertaining,” “highly accessible,” “penetrating,” and “outstanding.” Here I want to highlight a snapshot from Fromm’s life as a public intellectual and political activist from the prologue to the book, a facet of his life about which I had known very little prior to Friedman’s study:

“In the fall of 1960, an article Fromm published in the journal Daedalus on arms control and disarmament commanded presidential Kennedy’s attention. In the article, Fromm advised that the United States pepper the Soviets with a stream of sequential weapons-reduction proposals culminating in the elimination of all nuclear weapons. He also called for a strong federal disarmament agency. Ten months into his presidency, Kennedy prompted Congress to create the Arms Control and Disarmament Agency. He also instructed his advisors to consider Fromm’s proposal for sequentially pressuring the Soviets. In response, Kennedy’s national security advisor, McGeorge Bundy, incorporated several of Fromm’s writings on Soviet and German politics in his Oval Office briefing materials. This pattern of indirect contact continued into the fall of 1962, when the Cuban Missile Crisis nearly led to nuclear war.* There is reason to believe that Kennedy made a telephone call to Fromm soon after the crisis. Then, in June 1963, in a major address at American University, the president departed markedly from his often hawkish Cold War rhetoric and emphasized the need for peaceful coexistence with the Soviets, along with nuclear disarmament, as a means to avert global extinction. Many briefing documents and private conversations with ‘insiders’ obviously had shaped the address. But Kennedy’s reasoning, the ethical values he presented, and even some of the specific language of the speech approximated parts of Fromm’s own writings, especially the Daedalus article.”

Fromm’s exemplary and inspirational role as a public intellectual in this regard reminds one of Michael Harrington’s contemporaneous influence on President Kennedy’s administration and President Lyndon B. Johnson’s subsequent War on Poverty as a result of his book, The Other America: Poverty in the United States (1962). And like C. Wright Mills, Fromm “remains a model for those who wish to become public and political intellectuals,” even if his impact on the New Left, and in particular the Students for a Democratic Society (SDS), was nowhere near that of Mills nor, for that matter, his Freudo-Marxist sparring partner, Herbert Marcuse.

Friedman continues:

“During the most dangerous days of the Cold War, when global nuclear annihilation was a real possibility, including the disastrous American presence in Vietnam, and amid the civil rights movement and global cries for human dignity, Fromm’s public lectures and books, coupled with his exceedingly generous donations, helped to mobilize peace and human rights activists to speak out for a world without war. Here, as in the other, less political of Fromm’s lives, he often spoke in prophetic language—a man with a global mission for humanity. To that end, he helped to found and fund the National Committee for a Sane Nuclear Policy and Amnesty International and was active in both groups.”

* As Friedman later writes, “During the Berlin Crisis of 1961 and the Cuban Missile Crisis of 1962, [Michael] Macoby and [David] Riesman were determined that Bundy have access to Fromm’s ideas, particularly those based on important information and documents on the Germany situation that Fromm had but that were unavailable to the State Department. Fromm therefore sometimes came up in Bundy’s briefings of Kennedy. There is no way of telling how seriously Kennedy took Fromm’s perspectives. He enjoyed contact with intellectuals and scholars but often tended to dismiss doves as unrealistic. It is clear, though, that Bundy briefed Kennedy on some of Fromm’s positions on international affairs, and the president never sought to eliminate them from his briefings.” For a startling account of the Cuban Missile Crisis, at least for those of us who’ve not kept up with recent research, please see the chapter, “The Cuban Missile Crisis—Prestige, Credibility, Power,” in Joseph Gerson’s Empire and the Bomb: How the US Uses Nuclear Weapons to Dominate the World (London: Pluto Press, in association with American Friends Service Committee, New England Regional Office, 2007): 93-129.

Further Reading—The following titles help to situate Fromm historically, politically, and philosophically in the incipient “subjective science” of Freudian psychoanalytic psychology as well as the Freudo-Marxism and “critical theory” that emerged from the Frankfurt School:

• Alford, C. Fred. Levinas, The Frankfurt School and Psychoanalysis. Middletown, CT: Wesleyan University Press, 2002.
• Balbus, Isaac D. Mourning and Modernity: Essays in the Psychoanalysis of Contemporary Society. New York: Other Press, 2005.
• Benhabib, Seyla. Critique, Norm, and Utopia: A Study of the Foundations of Critical Theory. New York: Columbia University, 1986.
• Benjamin, Jessica. The Bonds of Love: Psychoanalysis, Feminism, and the Problem of Domination. New York: Pantheon Books, 1988.
• Burston, Daniel. The Legacy of Erich Fromm. Cambridge, MA: Harvard University Press, 1991.
• Cavell, Marcia. The Psychoanalytic Mind: From Freud to Philosophy. Cambridge, MA: Harvard University Press, 1993.
• Cavell, Marcia. Becoming a Subject: Reflections in Philosophy and Psychoanalysis. New York: Oxford University Press, 2006.
• Danto, Elizabeth Ann. Freud’s Free Clinics: Psychoanalysis and Social Justice, 1918-1938. New York: Columbia University Press, 2005.
• Dilman, Ilham. Freud and Human Nature. Oxford, England: Basil Blackwell, 1983.
• Dilman, Ilham. Freud and the Mind. Oxford, UK: Basil Blackwell, 1984.
• Gardner, Sebastian. Irrationality and the Philosophy of Psychoanalysis. Cambridge, UK: Cambridge University Press, 1993.
• Jacoby, Russell. Otto Fenichel and the Political Freudians. New York: Basic Books, 1983.
• Jacoby, Russell. The Last Intellectuals: American Culture in the Age of Academe. New York: Basic Books, 2000 ed.
• Jay, Martin. The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923-1950. Berkeley, CA: University of California Press, 1996 (1973).
• Kellner, Douglas. Herbert Marcuse and the Crisis of Marxism. Berkeley, CA: University of California Press, 1984.
• Kellner, Douglas. Critical Theory, Marxism, and Modernity. Baltimore, MD: Johns Hopkins University Press, 1989.
• Lear, Jonathan. Love and Its Place in Nature: A Philosophical Interpretation of Freudian Psychoanalysis. New York: Farrar, Straus & Giroux, 1990.
• Lichtman, Richard. The Production of Desire: The Integration of Psychoanalysis into Marxist Theory. New York: Free Press, 1982.
• Lowenthal Leo. Critical Theory and Frankfurt Theorists: Lectures, Correspondence, Conversation. New Brunswick, NJ: Transaction Publishers, 1989.
• Robinson, Paul. The Freudian Left: Wilhelm Reich, Geza Roheim, Herbert Marcuse. Ithaca, NY: Cornell University Press, 1990 ed.
• Wallwork, Ernest. Psychoanalysis and Ethics. New Haven, CT: Yale University Press, 1991.
• Wheatland, Thomas. The Frankfurt School in Exile. Minneapolis, MN: University of Minnesota Press, 2009.
• Whitebrook, Joel. Perversion and Utopia: A Study in Psychoanalysis and Critical Theory. Cambridge, MA: MIT Press, 1995.
• Wiggershaus, Rolf. The Frankfurt School: Its History, Theories, and Political Significance. Cambridge, MA: MIT Press, 1994.
• Wilde, Lawrence. Erich Fromm and the Quest for Solidarity. New York: Palgrave Macmillan, 2004.
• Wolfenstein, Eugene Victor. Psychoanalytic-Marxism: Groundwork. London: Free Association Books/New York: Guilford Press, 1993.
• Zaretsky, Eli. Secrets of the Soul: A Social and Cultural History of Psychoanalysis. New York: Vintage Books, 2004.

The Israeli Strike(s) in Syria and International Law

The range of discourse in Israel over Israeli policies toward the Palestinians is far greater than it is in the United States concerning all the most crucial issues: the extent of Israeli responsibility for the failure of the Camp David negotiations in 2000 and the general breakdown of the peace process since then; the nature of the Palestinian intifada and the Israeli response to it; the justifiability of the continuing Israeli occupation of the West Bank and Gaza and the repression that has accompanied it; the consequences of the Israeli separation barrier and other measures designed to ensure de facto or de jure Israeli sovereignty over parts of the West Bank and effective control over most of the rest of it; the significance and purpose behind the 2005 Israeli withdrawal from Gaza; the extent and justification for the violence and terrorism employed by both Palestinians and Israelis in the ongoing conflict…and whether the rise of Hamas in Gaza has ended all prospects for compromise.—Jerome Slater

After the occupation of 1967 [the ‘vision of the primacy of force’ going back to the founding of the state of Israel], helped create a disturbing, schizophrenic self-image in which, in the name of legitimate self-defense, the justification of the worse misdeeds was mixed with a perpetuation of their denial. But in the aftermath of 1948 this vision still clashed with the image that the leadership of the yishuv was seeking to promote, that of a conflict between one camp bearing the values of civilization, peace, progress, emancipation, and freedom against the retrograde and aggressive camp of ‘the Arabs’ in general. As a consequence, this leadership chose to establish as official history the denial of facts and responsibilities.—Sylvain Cypel

The way [Israeli] society portrays its Arab opposite numbers both in intellectualized forms and in popular manifestations is, on the whole, based on a very deep sense of superiority in terms of civilization and culture (Western), politics (democratic), and intellect, onto which is grafted willful ignorance and indifference along with fantasy projections onto the Arab, all these giving rise to denial of his real identity—in extreme cases of his simple humanity. Not just ordinary people but a large number of intellectuals will readily tell you that Arabs have ‘a different sense from ours’ of life and death, that an Arab mother has many children and ‘doesn’t suffer the same way we do’ if one of them dies. [….] On many occasions [Ehud] Barak has used the following metaphor to characterize the situation of Israel within the Arab world: the Jewish state is ‘a villa in the jungle.’ The image speaks volumes about the way Barak seems himself and the Arab world: Israel is an island of modernity, prosperity, and propriety in a natural, savage environment that has to be tamed to prevent it from encroaching.—Sylvain Cypel   

I routinely read a handful of international law and politics blogs, including EJIL Talk! (of the European Journal of International Law) and especially Opinio Juris. Of late, I’ve added regular visits to the Arms Control Law blog, having benefitted from the scholarship of two of its ten bloggers, namely, Daniel Joyner and David Fidler. Professor Joyner, the founder and administrator of the blog has written a number of posts essential to a dispassionate and rational understanding of Iranian nuclear policy and its putative pursuit of nuclear weapons, about which there has been much hysteria, suggesting that “Iranophobia” is not a peculiarly Israeli obsession.[1] But the post at issue here is not about the “Iranian nuclear crisis,” rather, it concerns Dan’s views on the recent Israeli airstrike(s) in Syria, the target or targets of which have not to date been clear: “While the main target of the attack on Wednesday seems to have been SA-17 missiles and their launchers — which the Israelis feared were about to be moved to Hezbollah forces in Lebanon — video shown on Syrian television backs up assertions that the research center north of Damascus also suffered moderate damage.”

As we learn below, Dan finds “Israel’s motivations and reasoning” behind this strike (or these strikes) “compelling,” conceding a suspicion that the “[f]rom a strictly formal international legal perspective,” Israel is in “violation of Article 2(4) of the UN Charter, and is not justified by Article 51 or the customary law principle of anticipatory self-defense:”[2]

“I’m sitting at a cafe in the Marais district of Paris, waiting for my entrecôte to arrive, and just read about the Israeli airstrike in Syria, apparently targeting a shipment of missile parts which the Israelis expect were heading to Hezbollah for use against Israel.

I thought I would just give my quick reaction to the incident, and others can weigh in too. My opinion is heavily influenced by the current state of chaos in Syria, and indeed I’m quite confident that this circumstance is the sine qua non of the Israeli government’s extraordinary decision to strike within Syrian territory.

From a strictly formal international legal perspective, I suspect that this strike is, notwithstanding the current unrest in Syria, still a violation of Article 2(4) of the UN Charter, and is not justified by Article 51 or the customary law principle of anticipatory self-defense.

However, this is a situation in which I completely understand Israel’s motivations and reasoning, and I think that those reasons are compelling.

So my quick assessment of the incident is that, while it was probably technically illegal, I would have done the same thing under these circumstances if I was the Israeli PM.”

After a series of comments, Dan adds:

“This post has clearly troubled some people. Please understand that the professional discipline of a lawyer trains us to determine correctly what the law is, and what actions are in compliance with the law. The decision of whether or not to comply with the law is not a decision for lawyers. It’s a political decision. In this piece I did my job as a lawyer, stating what I believe to be the correct understanding of law and application to facts. I did then go beyond the lawyer’s job to give my own political/practical opinion about what should be done in this case.

Some of my colleagues in academic international law consider themselves to be priests in a religion called international law – and they consider any breach of international law to be blasphemous. That’s not me.

I am essentially a positivist. I think that humans create law, and that law is imperfect. Thus, there will be some times, hopefully very rare, when following the law will not be the right choice for a state to make, in considering all of the interests and values involved. Again, I think that this should be very much the exception, and should only take place in exceptional circumstances. In this case, I said that my opinion was heavily influenced by the exceptional circumstances of civil war and general anarchy in Syria.

But here is an important distinction. I am also a jurisprudentialist, and I don’t believe in bending or simply fudging the correct interpretation of the law to try and make the law appear to justify something that it doesn’t. So, in the rare cases, like this one, in which I think a violation of the law is needed, I think governments should be honest about what they are doing, as I was in my analysis. This is the only way in which the law will change through customary development over time. And it pays respect to the law, even in cases in which it is necessary to breach the law.

In my opinion it’s much more disrespectful to international law to be disingenuous in arguing that your violative action is in fact justified by international law. That just makes the law into a farce.”

Finally, and following yet more comments, including a couple from yours truly, Dan reiterates and clarifies his response to the strikes:

[….] “I would make the same assessment if the identities of the states were different in this situation. Can any one of you honestly say that if it was your country being threatened in this way, you wouldn’t do the same thing? Especially when in this particular instance, the loss of life caused by the action appears to have been minimal.

Isn’t it at least somewhat analogous to a situation in domestic law in which the life of a loved one may depend on breaking the law? Who can honestly say that they wouldn’t do whatever was necessary in that situation, particularly if no one or few would be hurt by it? I’d break a lot of laws if such a case of extremity arose and would not feel guilty about it.

I have written at length in academic publications about what I consider to be the gap between law and reality with regard to use of force law [The paper is found below in the ‘references and further reading.’] So this is something that I’ve given a lot of thought to, and tried to work out from a theoretical as well as doctrinal perspective. That certainly doesn’t mean that everyone will be persuaded by my analysis. And I know that some of you have noted that, if we start carving out times when it’s right to disobey international law, when does it stop? Isn’t it a slippery slope? Can’t Israel say the same thing about what it considers to be the threat from Iran? Well, you are right to say that my prescription in this case, if generalized, does introduce subjectivity into decisions about international uses of force that undermine it as an area ruled by law. But as I explain in my article, I think this is unavoidable in this particular area of international relations, and that in fact international law is simply not at a stage of its evolutionary progression to provide adequate regulation to international uses of force in particular.

Again, this does not stop me from rendering an objective, rigorous analysis of the law as it currently stands in each case that is presented. As I said, I don’t believe in fudging the interpretation of the law. And to be clear, it’s really only in the area of use of force law that I personally would allow for this kind of necessity of flexibility in expectations of compliance. As I explain in the article, use of force law is anomalous in many ways, and in other areas of international law, in my opinion, there really is no excuse for not complying all the time.”

Please note: I began this post before the last reply from Dan appeared, and because this post is already rather long, I won’t address (here and now at any rate) the latest clarification of his argument (or the argument in the paper he links to for that matter). Dan implores us “to maintain our objectivity in this case, even when the subject of analysis is a country some of whose actions many of us disagree with,” and I have tried to remain objective in what follows, but that does not rule out the belief that this latest event should be placed in a geopolitical and historical context and larger legal pattern, one that finds Israel deserving of its reputation for being considerably less than forthcoming when engaging in behavior of this sort. Be that as it may, it is refreshing and encouraging (and not surprising in his case) that Dan concludes by saying that he “agree[s] that clearer understanding of the facts could change both the legal analysis, as well as my own political analysis of the rightness of the action. So I’m happy to have this conversation continue.”

UN Human Rights Council Report Condemns Israel’s Settlements

The United Nations Human Rights Council has just released its “Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem.”

The full report is here. A helpful list of “selected sources” is here (see especially the list of articles and books on p. 5), although I’ve included a few of those and others below under “further reading.”

At Opinio Juris, Kevin Jon Heller correctly notes “nothing” in this “blistering report condemning Israel’s settlements” “is particularly novel,” for “it’s long been obvious that both the settlements and the transfer of Israeli civilians into the Occupied Palestinian Territories are illegal.”

Conclusions (from pp. 20-21 of the 37 page report, which is followed by ‘recommendations,’ a ‘timeline,’ and map):

100. The facts brought to the attention of the Mission indicate that the State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures. The Mission notes that despite all the pertinent United Nations resolutions declaring that the existence of the settlements is illegal and calling for their cessation, the planning and growth of the settlements continues both of existing as well as new structures.

101. The establishment of the settlements in the West Bank including East Jerusalem is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination.

102. The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law, as applicable in the OPT as notably recognised by the 2004 ICJ Advisory Opinion.

103. The settlements are established for the exclusive benefit of Israeli Jews; settlements are being maintained and developed through a system of total segregation between the settlers and the rest of the population living in the OPT. This system of segregation is supported and facilitated by a strict military and law enforcement control to the detriment of the rights of the Palestinian population.

104. The Mission considers that in relation to the settlements Israel is committing serious breaches of its obligations under the right to self-determination and “certain obligations under international humanitarian law,” including the obligation not to transfer its population into the OPT. The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.

105. The existence of the settlements has had a heavy toll on the rights of the Palestinians. Their rights to freedom of self-determination, non-discrimination, freedom of movement, equality, due process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of expression, freedom to access places of worship, education, water, housing, adequate standard of living, property, access to natural resources and effective remedy are being violated consistently and on a daily basis.

106. The volume of information received on dispossession, evictions, demolitions and displacement points to the magnitude of these practices. These are particularly widespread in certain areas and acute in East Jerusalem.

107. The Mission has noted that the identities of settlers who are responsible for violence and intimidation are known to the Israeli authorities, yet these acts continue with impunity. The Mission is led to the clear conclusion that there is institutionalised discrimination against the Palestinian people when it comes to addressing violence. The Mission believes that the motivation behind this violence and the intimidation against the Palestinians as well as their properties is to drive the local populations away from their lands and allow the settlements to expand.

108. The Mission is gravely concerned at the high number of children who are apprehended or detained, including for minor offences. They are invariably mistreated, denied due process and fair trial. In violation of international law they are transferred to detention centres in Israel.

109. Children suffer harassment, violence and encounter significant obstacles in attending educational institutions, which limits their right to access education. Israel, the occupying Power is failing in its duty to protect the right to access education of the Palestinian children and failing to facilitate the proper working of educational institutions.

110. Information gathered by the Mission show that some private entities have enabled, facilitated and profited, from the construction and growth of the settlements, either directly or indirectly.

111. Women alone in their homes, the Bedouins and other vulnerable groups are easy targets for settler violence, creating a sense of insecurity amongst the wider Palestinian society.

Further Reading:

• Cypel, Sylvain. Walled: Israeli Society at an Impasse. New York: Other Press, 2006.
• Kretzmer, David. The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. Albany, NY: State University of New York Press, 2002.
• Makdisi, Saree. Palestine Inside Out: An Everyday Occupation. New York: W.W. Norton and Co., 2008.
• Weizman, Eyal. Hollow Land: Israel’s Architecture of Occupation. London: Verso, 2007.
• Zertal, Idith and Akiva Eldar. Lords of the Land: The War Over Israel’s Settlements in the Occupied Territories, 1967-2007. New York: The Nation Books, 2007.

The second image above is found here.

Marx is not a utilitarian.

Once again it is evident that even between major crises, ‘the market’ has no answer to the major problem confronting the twenty-first century: that unlimited and increasingly high-tech growth in the pursuit of unsustainable profit produces global wealth, but at the cost of an increasingly dispensable factor of production, human labour, and, one might add, of global natural resources. Economic and political liberalism, singly or in combination, cannot provide the solution to the problems of the twenty-first century. Once again the time has come to take Marx seriously.—Eric Hobsbawm

At a PrawfsBlawg “Book Club “symposium on Robert P. Merges’ book, Justifying Intellectual Property (Harvard University Press, 2011), Merges concludes the series of exchanges with fellow experts in intellectual property law with a response to a post by John Duffy. The latter contrasts the author’s reliance on a line of ideas that runs through Locke, Kant, and Rawls with an alternative one (an ‘intellectual lineage’) that likewise begins with Kant but then proceeds through Hegel to Marx. Merges writes:

“One final point: to connect Kant with Hegel with Marx, as John does, is a legitimate move philosophically. But I have to add that for many interpreters of Marx, he is the ultimate utilitarian. What is materialism, as in Marxist historical materialism, but a system that makes radically egalitarian economic outcomes the paramount concern of the state? The famous suppression of individual differences and individual rights under much of applied Marxist theory represents the full working out of the utilitarian program under which all individuals can be reduced to their economic needs, and all government can be reduced to a mechanistic system for meeting those needs (as equally as possible)? If we are going to worry about where our preferred theories might lead if they get into the wrong hands, I’ll take Locke and Kant and Rawls any day. In at least one form, radical utilitarian-materialism has already caused enough trouble.” [emphasis added]

Whatever might be said about the claims of “many interpreters,” I do not think it is true that Marx is “the ultimate utilitarian,” or even a utilitarian simpliciter (that this is at all relevant is owing largely to the fact that Merges is concerned to point out the fatal flaw of relying on utilitarianism generally or law and economics in particular as a philosophical justification—if only by default—of intellectual property law). In support of my belief, I quote from one of the better interpreters of (at least some facets of) Marx’s work, Allen Wood, who writes that while “it is true that Marx’s thoughts about morality have more in common with utilitarianism than with any other familiar position in moral philosophy,” “Marx is not a utilitarian.” Why? One reason is that Marx’s conception of the nonmoral good is not hedonic. A second reason is that “Marx appears disinclined to regard the nonmoral good as quantitatively measurable and summable in the ways required by utilitarian theories.” But more vividly, even if less plausibly, Marx often spoke of moral norms as largely determined by correspondence with the prevailing mode of production (one needs to reconcile this with Marx’s characterization of capitalism as a profoundly unjust system and his clear use of explicit [early writings] and implicit moral judgments [later works] not so determined). Moreover, the Marxist conception of the “good life” does not seem amenable to utilitarianism insofar as it grounded in a notion of self-actualization or self-realization (about which see Jon Elster’s writings on Marx, especially his essay, ‘Self-realisation in work and politics: the Marxist conception of the good life’).

R.G. Peffer, yet another interpreter of Marx, likewise endorses the proposition that Marx’s thinking is not fairly described as a “utilitarian:” “Marx implicitly espouses a principle requiring egalitarian (or relatively egalitarian) distribution…of goods [like freedom (as self-determination), self-realization, and community], especially the good of freedom.” The values and principles by which we might understand, say, exploitation and alienation, are not reducible to notions of utility, preference satisfaction, or the satisfaction of desires, indeed, they appear to be ultimately grounded in the idea of “human dignity [or inherent worth] and the good of self-respect.” Although Marx was not a moral philosopher, his moral beliefs at bottom have more of a (mixed?) “deontological” ring than not. Peffer’s book, Marxism, Morality, and Social Justice (Princeton University Press, 1990), is one of the better treatments of this topic (in particular: 80-114) and I highly recommend it (he also discusses, more broadly, consequentialist readings).   

Wood, Elster, and Peffer may not be representative of the Marxist tradition as such, but they are among the more reliable and sophisticated analysts (along with G.A. Cohen) of the Marxian corpus, and thus whatever the differences among them in the exposition of Marx’s ideas, they all agree: Marx is not a utilitarian.  

It’s also worth pointing out that while Merges would like to stay far clear of Marx, the Rawls that inspires and animates the main argument of his book does not imbibe this dismissive sentiment, as evidenced in his rather sympathetic and appreciative discussion of Marx in his Lectures on the History of Political Philosophy (Belknap Press of Harvard University Press, 2007): 319-372.

Humanitarian Intervention & Principled Violation of International Law

It may be true that the normatively rich ideal of the rule of law includes a presumption that changes in the legal system are to be brought about by actions that are compatible with existing legal rules; but this cannot be an absolute requirement. If illegal acts are necessary to bring about substantive improvements in the system whose rules for legal change are serious impediments to progress, and if these acts are undertaken in a responsible way, with appropriate precautions to reduce the risks of error and abuse, and with a proper regard for the dangers of undermining confidence in the law, then this presumption in favor of changing the law through legal means can be overridden. To fail to see this is arbitrarily to privilege what is at best one element on the normatively rich conception of the commitment to the rule of law—the presumption in favor changing the law through legal means—at the expense of other elements and substantive justice. A group of states willing to act illegally to bring about reform in the law of intervention can honor the presumption that change in the law is to be brought about by legal means—by proceeding to act illegally only after they have made a responsible determination that reform through legal means is not feasible due to the current system’s deficiency, in this case, the morally arbitrary way and overly constraining concentration of power in the hands of the permanent members of the Security Council.—Allen Buchanan

At the Arms Control Law blog, Dan Joyner asks a question we all might have asked ourselves at one time or another: “Why Can We Only Break International Law in order to Torture and Kill People and not in order to Help Them?”

“I was just coming home from driving my daughter to school, when I heard a story on NPR about how the US has been encouraging the opposition coalition in Syria politically, and in particular encouraging moderates to become involved, but that now the US is failing to make good on promises it has made to provide actual material support to the opposition, and through it to the suffering Syrian people, and in so doing is undermining those very moderate elements. The reason for this failure to follow through on promises? Well, John Bellinger came on the radio to say that international law forbids the US from becoming involved in the internal affairs of another country, and that because the US still recognizes the Assad regime as the legal government of Syria, international law forbids giving material aid – even simply humanitarian aid – to the Syrian people through the opposition.

I’m less interested in whether Bellinger’s assessment of law is correct as I am with what seems to me to be quite a sickly ironic fact of US foreign policy. We only break international law when we think we have to kill people or torture them for national security purposes. Then the cause is important enough that international law doesn’t matter.  Iraq, Guantanamo, Bagram, assassinations in Iran, drones in Pakistan – the list could go on.  But when we are faced with humanitarian crises when our support could help thousands to live and NOT die – Rwanda, Darfur, Syria, etc. – we stay our hand, because of conservative interpretations of the niceties of international law. Now how sickly ironic is that, particularly in light of the human rights and humanitarian principles centralto so much of modern international law?

If we accept that sometimes we will have to break international law in the course of practical international relations, I would be much happier about doing so in a case like supporting the Syrian opposition and Syrian people, than I am about doing so in order to disproportionately kill civilians in our ridiculously ill-conceived wars in Iraq and Afghanistan.” [emphasis added]

To be sure, this question has been addressed, albeit indirectly, to the extent that there is an emerging body of work discussing the pros and cons of “humanitarian intervention.” But Joyner is aware that such intervention may not always be countenanced by international law, one reason Allen Buchanan has discussed the need for an international law and politics analogue to the practice of principled civil disobedience in domestic legal systems (hence the ‘morality of illegal international legal reform’) as part of a larger strategy for international legal reform in his book, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004). In other words, we can have wrong or immoral reasons for flouting international law, or we can conscientiously break international legal norms in a morally principled manner that demonstrates respect for the international legal system and the global society of States: “under certain conditions a willingness to violate existing international law for the sake of reforming it can be not only consistent with a sincere commitment to the rule of law, but even be required by it.”[1] On first glance, the phrase “humanitarian intervention” sounds like something performed by a nonsectarian NGO like Direct Relief International or by The International Red Cross and Red Crescent Movement, the latter being “the largest humanitarian network in the world. Its mission is to alleviate human suffering, protect life and health, and uphold human dignity especially during armed conflicts and other emergencies.” Alas, things are not so simple. In today’s world, such intervention can assume several forms, some of them on the order of what C.A.J. Coady calls an “altruistic war” [or what Larry May terms a ‘humanitarian war’], in other words, humanitarian intervention comes close to being simply reduced to, or a euphemism for, a “just cause” rationale (sans any obvious State ‘aggression’ as understood in several articles of the UN Charter) for military intervention, that is,

“military intervention in another state’s affairs in order to remove an awful government or to remedy some great internal evil, such as persecution of a minority group [or genocide, which in international criminal law is distinguishable from ‘persecution’]. [….] Cases can range from deposing a bad government to preventing genocide, and they are not philosopher’s fantasies, as wars in Uganda, Cambodia, and the former Yugoslavia have shown, and as arguments for the intervention in Iraq on the grounds of ‘regime change’ also highlight.”[2]

Coady reminds us of a somewhat neglected if not forgotten premise of just war theory, namely,

“a presumption against the moral validity of resort to war given what we know of the history of warfare, of the vast devastation it causes (nowadays even more so) and the dubious motives that have often fueled it [think, for instance, of Liberal Neo-Imperialism]. The development of just war theory has been progressively away from altruistic legitimation of war for just this reason. Our experience of wars of religion (the dreadful carnage of the Thirty Years’ War in Europe, for example), of trade and imperialist wars, and of what tends to happen when one nation conquers another ‘for its own good’ speak against allowing such an account of ‘just cause.’”[3]

But as Professor Joyner’s post makes plain, and Coady himself points out, “the fact remains that there can be some extreme cases that create a worry for this view. Coady illustrates this with a few historical examples: the Indian invasion of Bangladesh in 1971, the Vietnam invasion of Cambodia (1977-1989), the Tanzanian invasion of Uganda, and genocide in Rwanda. In sum, humanitarian intervention becomes military intervention which, strictly speaking, is invasion. In terms of just war theory, this raises the issue of the jus ad bellum criterion of “prospect of success,” which itself can be conceived in different if not conflicting terms, involving either or both short-term and long-term objectives (e.g., ‘saving lives now’ and ‘securing political stability and security’ respectively). Among other things, we should notice that “the shorter-term objective is compatible with—and in some respects suited to—military procedures, whereas armed forces alone are unlikely to deliver the longer-term objectives.”[4] Coady provides us with a tentative conclusion:

“Advocates of the short-term view will say that at least we saved these people’s lives now, but the long-termers will say that this is small comfort if our intervention merely delays the catastrophe or helps to create a new one. Furthermore, if you are going for the longer term, you will need more than mere violent intervention. Some longer-term solution is ideally preferable in both the domestic and international spheres, since most short-term solutions risk futility. But the ‘longer-term’ cannot be too long. An intervention must avoid escalating into a colonial saga or even an enduring protectorate.

Yet even sensible longer-term solutions that might avoid these perils require many things that are not readily available. First, they require non-military techniques and personnel; second, they require a commitment of will over a relatively long time; and third, they require the dedication of financial and other resource for an unglamorous long haul. They necessitate, in short, in what Thomas M. Franck has called a ‘holistic approach’ to humanitarian rescue.”[5]

Genocide is typically thought to provide us with the clearest case for military intervention, even among those strongly critical or generally skeptical of “humanitarian intervention:” “Humanitarian war to stop a genocidal campaign is indeed one of the most seductive reasons to go to war.”[6] But even here, as Larry May argues, “the justification of this practice is not as easy as one might think.”[7] First, we need to keep in mind “that when States use force typically people die, and often those that die from a State’s use of force are the innocent, the very class of people who are the intended beneficiaries of the humanitarian intervention.”[8] Second, the intervention itself may, as an unintended but perhaps foreseeable spillover or by-product effect, give rise to a whole new class of humanitarian problems. Third, there are diplomatic and political problems exacerbated by the fact that genocide typically occurs in societies that are “not robust democracies, but are instead ‘troubled societies,’ where there are rarely easy answers about how to reform the authority structure.”[9] A country’s colonialist history only makes matters worse on this score. I’ve introduced May’s treatment of this topic by way of suggesting that even the ostensibly easiest case for humanitarian intervention, the prevention or ending of genocide, needs careful consideration. May himself provides “a limited defense” of “humanitarian intervention to stop genocide.”[10]

Suffice to say, we need to think such things through well before the event that arises that compels us to consider the need for and prospects of humanitarian intervention, for such moments will not leave us with the leisure time to think long and deep about the possible or probable costs and benefits or wide-ranging consequences of our decisions, however well-motivated they may be.

Notes:

[1] Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004): 440. See too Buchanan’s article, “From Nuremberg to Kosovo: The Morality of Illegal International Legal Reform,” Ethics 111 (2001): 637-704. To the extent that the “rule of law” itself may require principled violations of international law, we might speak not only of the international analogue to municipal civil disobedience, but of the international analogue to the seemingly paradoxical idea of “lawful departure from legal rules” as discussed by Mortimer R. Kadish and Sanford H. Kadish in Discretion to Disobey: A Study of Lawful Departures from Legal Rules (New Orleans, LA: Quid Pro Books, 2010/originally published by Stanford University Press, 1973).

[2] C.A.J. Coady, Morality and Political Violence (Cambridge, UK: Cambridge University Press, 2008): 73.

[3] Ibid., 73-74.

[4] Ibid., 76-77.

[5] See Thomas A. Franck, “A Holistic Approach to Building Peace,” in Olara A. Omnnu and Michael W. Doyle, eds., Peacemaking and Peacekeeping for the New Century (Lanham, MD: Rowman and Littlefield, 1998): 275-296.

[6] Larry May, Genocide: A Normative Account (Cambridge, UK: Cambridge University Press, 2010): 227.

[7] Ibid., 224.

[8] Ibid., 226.

[9] Ibid., 230.

[10] Ibid., 234-238.

Further Reading on Humanitarian Intervention:

• Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
• Buchanan, Allen. Justice, Legitimacy and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
• 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.
• Coady, C.A.J. Morality and Political Violence. Cambridge, UK: Cambridge University Press, 2008.
• 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.
• Zolo, Danilo. Victor’s Justice: From Nuremberg to Baghdad. London: Verso, 2009.

Image: (from the civil war in Syria) Javier Manzano /AFP/ Getty Images

Engaged Buddhism & Liberation Theology

While I never attend conferences that cost anything close to the amount required here as a registration fee (for non-Union students and others), I nonetheless thought this may interest RLL readers in the New York area:  “Enlightenment and Liberation: Engaged Buddhists and Liberation Theologians in Dialogue.” It is being held at the Union Theological Seminary from April 17 (Wednesday) to April 20 (Saturday), 2013. The roster of participants from the Buddhist and Christian traditions is rather impressive.  

Will the “War on Terror” Ever End?

At the Arms Control Law blog, Marco Rosini writes that after reading President Obama’s inaugural address, he

“was surprised to find no reference whatsoever to disarmament and non-proliferation, which played an important role in Obama’s first four years. I also found that declaring that ‘We [the US] will defend our people and uphold our values through strength of arms’ was a bit too belligerent (but, to be fair, he mentions the rule of law too). And what ‘decade of war’ is ending? I assume the reference is to the ‘war on terror,’ an unfortunate expression that is obviously hard to get rid of.”

I rather suspect the “decade of war” was a (rough) reference to the U.S. troops in Afghanistan and the fact that “the NATO-led ISAF Forces will hand over command of all combat missions to Afghan forces by the middle of 2013.” It could be in reference to the war in Iraq as well, as Deborah Pearlstein points out in her post at Opinio Juris: “A Decade of War is Ending.” I don’t think it’s a reference to the “war on terror,” however unfortunate the locution, as the Administration is loath to abandon the phrase (what the Washington Post called back in October of last year ‘the permanent war’) as long as it sees itself involved in “an armed conflict against al Qaeda and associated forces, to which the laws of armed conflict apply,” in the words of Jeh Charles Johnson, General Counsel of the U.S. Dept. of Defense. However, unlike the notion of a “permanent war,” it seems Johnson believes there will come a “tipping point” at which we can envision the end of this particular armed conflict while still engaged in “a counterterrorism effort against individuals….for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.” If we assume that “armed conflict” is what justifies the expression “war on terror,” then an end to that war is envisioned. Nonetheless, war metaphors are obdurate and fairly commonplace in public discourse in this country (e.g., ‘war on poverty,’ ‘war on drugs,’ ‘war on working families,’ ‘Republican war on science,’ and so forth, as well as the many metaphors derived from the meaning of war), so I suspect, alas, the “war on terror” will persist long after the possible end of this particular “armed conflict.”

In the talk by Pentagon General Counsel Jeh Johnson referenced above, he states an awareness “of studies that suggest that many ‘terrorist’ organizations eventually denounce terrorism and violence, and seek to address their grievances through some form of reconciliation or participation in a political process,” but states unequivocally that “Al Qaeda is not in that category.” In a future post I will discuss one such study (and Johnson’s claim as it relates to Al Qaeda) as part of a larger treatment of the “meaning(s) of terrorism.” With regard to our political vocabulary, I agree with these opening words from Ben Saul’s invaluable study, Defining Terrorism in International Law (Oxford University Press, 2006): “Few words are plagued by so much indeterminacy, subjectivity, and political disagreement as ‘terror,’ ‘terrorize,’ and ‘terrorism,’ and ‘terrorist.’” One need only survey the various scholarly definitions proffered in the law, social sciences, and political philosophy to arrive at this conclusion.

Torture & Zero Dark Thirty (Updated)

At Opinio Juris, Deborah Pearlstein shares with us a letter from three U.S. senators to the Chairman and CEO of Sony Pictures Entertainment on the role torture plays in the new film, Zero Dark Thirty, directed by Kathyrn Bigelow, “a master of heightened realism and narrative drive.”

Update: A colleague at my school sent me a note expressing puzzlement over the letter from the senators, indeed, wondering if they’d actually seen the movie:

“I have. I watched it with the Santa Barbara Cinema Society last weekend, and Kathryn Bigelow and the writer Mark Boal were there for a Q/A afterwards.

As hard as the opening scenes of water-boarding were to watch, what the movie shows very clearly is that NO useful information was obtained by the torture.

Osama Bin Laden was found through relentless, old fashioned perseverance and gum-shoe sleuthing.”

*    *    *    *    *    *    *

I’ve not seen the movie, but it seems from everything I’ve read that some who see the movie might make (and some already have made) the inference that torture (waterboarding and so-called ‘enhanced interrogation’ techniques) in fact did play a role, given its placement in the overall narrative of the story (indeed, why the torture scenes if they’re irrelevant to the search?). I’ll accord the senators the benefit of the doubt, for I’d be surprised if they (or at least their staff members) did not see the movie before composing a letter of this sort (although little truly surprises me these days).

Again, I’ve yet to see the film, but what might we make of this:

“Yet it’s a sign of how much spin is going on in relation to this issue that Manohla Dargis, in her review of the movie in The New York Times, could flagrantly misinterpret one key scene out of a politically correct desire to see Kathryn Bigelow land on the noble side of the torture debate. Dargis writes: ‘The abuse scenes are crucial to Zero Dark Thirty because they serve as a claim — one made cinematically rather than with speeches — that these interrogation methods are unreliable when it comes to producing actionable information.’ And how, within the movie, are these methods shown to be unreliable? ‘It is only later, when Dan and Maya lie to Ammar, sit across from him at a table, talk to him like a human being and give him food and a cigarette, that he offers them a potential lead.’ Dargis makes it sound as if Ammar offers up that lead simply because Dan and Maya decided to be ‘nice’ to him — that when it comes to terrorist prisoners, you can catch more flies with honey than vinegar. Actually, what Dargis leaves out is that when Dan and Maya lie to Ammar, telling him (falsely) that he offered up information that led to the defusing of a terrorist attack, the only reason that they’re able to get away with that crucial lie is that he’s been so bamboozled by torture that he can’t remember a goddamn thing.

So where does Zero Dark Thirty leave us as moviegoers? I would say that it’s not a pro-torture movie, but that it’s not anti-torture either. Rather, it says — rightly or wrongly — that the extreme interrogation methods that were put into practice after 9/11 were an integral part (though far from the only part) of what led the CIA to discover the whereabouts of Osama bin Laden.” [emphasis added] (Owen Gleiberman, Inside Movies)

Yet more interesting stuff in this regard from Jane Mayer in The New Yorker, who concludes the film, albeit subtly and indirectly at times, does in fact add up to an endorsement of the indispensability torture, at least that’s the inference many will make, all things considered:

“After some critics called Bigelow a torture apologist, she defended the fairness and historical accuracy of her movie. ‘The film doesn’t have an agenda, and it doesn’t judge. I wanted a boots-on-the-ground experience,’ she told my New Yorker colleague Dexter Filkins, who interviewed her for a Talk of the Town piece. At a Los Angeles press junket, the film’s screenwriter, Mark Boal, complained that critics were ‘mischaracterizing’ the torture sequences: ‘I understand that those scenes are graphic and unsparing and unsentimental. But I think that what the film does over the course of two hours is show the complexity of the debate.’ His point was that because the film shows multiple approaches to intelligence gathering, of which torture is only one tactic, and because the torture isn’t shown as always producing correct or instant leads, it offers a nuanced answer to the question of whether torture works.

But whether torture ‘worked’ was far from the most important question about its use. I’ve seen the film and, as much as I admired Bigelow’s Oscar-winning picture ‘The Hurt Locker,’ I think that this time, by ignoring the full weight of the dark history of torture, her work falls disturbingly short. To begin with, despite Boal’s contentions, ‘Zero Dark Thirty’ does not capture the complexity of the debate about America’s brutal detention program. It doesn’t include a single scene in which torture is questioned, even though the Bush years were racked by internal strife over just that issue—again, not just among human-rights and civil-liberties lawyers, but inside the F.B.I., the military, the Justice Department, and the C.I.A. itself, which eventually abandoned waterboarding because it feared, correctly, that the act constituted a war crime. None of this ethical drama seems to interest Bigelow.

To establish a baseline of moral awareness, she shows her heroine—a C.I.A. counterterrorism officer called Maya, played by Jessica Chastain—delicately wincing as she hands the more muscled interrogators a pitcher of water with which to waterboard a detainee. Maya is also shown standing mutely by when the detainee is strung up by ropes, stripped naked, and forced to crawl in a dog collar. In reality, when the C.I.A. first subjected a detainee to incarceration in a coffin-size ‘confinement box,’ as is shown in the movie, an F.B.I. agent present at the scene threw a fit, warned the C.I.A. contractor proposing the plan that it was illegal, counterproductive, and reprehensible. The fight went all the way to the top of the Bush Administration. Bigelow airbrushes out this showdown, as she does virtually the entire debate during the Bush years about the treatment of detainees.

The lone anti-torture voice shown in the film is a split-second news clip of President Barack Obama, taken from a ‘60 Minutes’ interview, in which he condemns torture. It flashes on a television screen that’s in the background of a scene set in Pakistan; the movie’s terrorist-hunters, who are holding a meeting, barely look up, letting Obama’s pronouncement pass without comment. ‘By this point in the film,’ as the CNN national-security analyst Peter Bergen wrote recently, ‘the audience has already seen that the C.I.A. has employed coercive interrogation techniques on an al Qaeda detainee that produced a key lead in the hunt for bin Laden. In the film, Obama’s opposition to torture comes off as wrongheaded and prissy.’

Bigelow has portrayed herself as a reluctant truth-teller. She recently described the film’s torture scenes as ‘difficult to shoot.’ She said, ‘I wish it was not part of our history. But it was.’

Yet what is so unsettling about ‘Zero Dark Thirty’ is not that it tells this difficult history but, rather, that it distorts it. In addition to excising the moral debate that raged over the interrogation program during the Bush years, the film also seems to accept almost without question that the C.I.A.’s ‘enhanced interrogation techniques’ played a key role in enabling the agency to identify the courier who unwittingly led them to bin Laden. But this claim has been debunked, repeatedly, by reliable sources with access to the facts. As the Washington Post’s Greg Sargent first reported, shortly after bin Laden was killed, Leon Panetta, then the director of the C.I.A., sent a letter to Arizona Senator John McCain, clearly stating that ‘we first learned about ‘the facilitator / courier’s nom de guerre’ from a detainee not in the C.I.A.’s custody.’ Panetta wrote that ‘no detainee in C.I.A. custody revealed the facilitator / courier’s full true name or specific whereabouts.’ [….]

In addition to providing false advertising for waterboarding, ‘Zero Dark Thirty’ endorses torture in several other subtle ways. At one point, the film’s chief C.I.A. interrogator claims, without being challenged, that ‘everyone breaks in the end,’ adding, ‘it’s biology.’ Maybe that’s what they think in Hollywood, but experts on the history of torture disagree. Indeed, many prisoners have been tortured to death without ever revealing secrets, while many others—including some of those who were brutalized during the Bush years—have fabricated disinformation while being tortured. Some of the disinformation provided under duress during those years, in fact, helped to lead the U.S. into the war in Iraq under false premises.

At another point in the film, an elderly detainee explains that he wants to coöperate with the U.S. because he ‘doesn’t want to be tortured again.’ The clear implication is that brutalization brings breakthroughs. Other ways of getting intelligence, such as bribing sources with expensive race cars, are shown to work, too. But while those scenes last only a few minutes, the torture scenes seem to go on and on.

The filmmakers subtly put their thumb on the pro-torture scale, as Emily Bazelon put it, in another scene, too. A C.I.A. officer complains that there is no way for him to corroborate a lead on bin Laden’s whereabouts now that the detainees in Guantánamo all have lawyers. The suggestion is that if they are given due process rather than black eyes, there will be no way to get the necessary evidence. This is a canard, given that virtually all suspects in the American criminal-justice system have lawyers, yet their cases proceed smoothly and fairly every day.

Bigelow has stressed that she had ‘no agenda’ when she made ‘Zero Dark Thirty.’ Unsurprisingly, though, those who have defended the brutalization of detainees have already begun embracing the film as evidence that they are right. Joe Scarborough, the conservative host of MSNBC’s show ‘Morning Joe,’ said recently that the film’s narrative, ‘whether you find it repugnant or not,’ shows that the C.I.A. program was effective and ‘led to the couriers, that led, eventually, years later, to the killing of Osama bin Laden.’ My guess is that this is just the beginning, and that by the time millions of Americans have seen this movie, they will believe that, as Frank Bruni put it in a recent Times column, ‘No waterboarding, no bin Laden.’” [….]

A NY Times article notes the director and writer stated that the film “[makes] clear that the most important break in the Bin Laden hunt did not come from a coercive interrogation,” which clearly leaves open the possibility it played some role at some earlier point in time (e.g., as a necessary yet not sufficient condition) or was nonetheless a possible variable in the chain of events. In other words, at best, it’s ambiguous or an open question as to the part “enhance interrogation” (i.e., torture) in fact played, simply ruling out the possibility that it was pivotal to “the most important break in the Bid Laden hunt.” That in fact is how some (many?) reviewers have interpreted the film, and why Mayer concludes above “that by the time millions of Americans have seen this movie, they will believe that, as Frank Bruni put it in a recent Times column, ‘No waterboarding, no bin Laden.’”

Second Update: In a letter to employees, the Acting Director of the CIA states, among other things, that

“the film creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding Bin Ladin. That impression is false. As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.” The entire letter comes, once more, courtesy of Deborah Pearlstein at Opinio Juris.

The Muslim Brotherhood, Islamist Politics, and the Quest for Democracy

My latest post, “The Muslim Brotherhood, Islamist Politics, and the Quest for Democracy,” is found at The Faculty Lounge (where my month of guest-blogging is about to end).  

Toward Teaching Prison Law…and Punishment & Prison: A Bibliography

Preamble:

 “When we return to the search for a more humane and rational response to crime, we must keep in mind that the prison is tied to other social and political arrangements that limit what changes are possible. The criminal justice system in general is at least partially involved, directly and indirectly, advertently and inadvertently, in repressing groups and classes of people and in maintaining unfair social, political, and economic relationships. Fundamental changes in its operation are impossible unless some higher degree of social justice has been achieved and the criminal justice system is relieved of these tasks. [….]

One of the important obstacles that must be removed is the public conception of the prisoner. Presently, this conception is formed from the rare, but celebrated and horrendous crimes, such as mass murders by the Manson cult, Juan Carona, or the ‘Hillside Strangler.’ Whereas prisoners like George Jackson, viewed as a heroic revolutionary fighting back from years of excessive punishment for a minor crime (an eighty-dollar robbery), shaped the conception of the prisoner in the early 1970s, persons like ‘Son of Sam’ do so today. These extraordinary cases distort the reality. Most prisoners are still in prison for relatively petty crimes, and even those convicted of the more serious crimes must be understood in the context of society in the United States. What we need is a new theory of crime and penology, one that is quite simple. It is based on the assumption that prisoners are human beings and not a different species from free citizens. Prisoners are special only because they have been convicted of a serious crime. But they did so in a society that produces a lot of crime, a society, in fact, in which a high percentage of the population commits serious crime. Those convicted of serious crimes must be punished and imprisoned, because it is the only option that satisfies the retributive need and is sufficiently humane. Knowing that imprisonment itself if very punitive, we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke, nor excessively deprive the human beings we have placed in prison. It also means that we must not operate discriminatory systems that select which individuals should be sent to prison and, once incarcerated, who should be given different levels of punishment.

Since we assume that convicts are humans like us and are capable of myriad courses of action, honorable and dishonorable, we also assume that they will act honorably, given a real choice. This means that we provide them with the resources to achieve self-determination, dignity, and self-respect. This theory continues to be rejected not because it is invalid, but because it challenges beliefs and values to which large segments of the population comfortably cling. [….] In pushing this theory, I admit that many prisoners, like many free citizens, act like monsters. But they are not monsters and often choose to act like monsters when their only other real option is to be totally disrespected or completely ignored, while being deprived, degraded, abused, or harassed.” [emphasis added]
—John Irwin, Prisons in Turmoil (1980)

The following proposal strikes me as worthy of wide attention and careful consideration: Sharon Dolovich, “Teaching Prison Law,” 62 Journal of Legal Education 218 (2012), UCLA School of Law Research Paper No. 12-26. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171884

Abstract:

“To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent. This essay argues that that silence is a problem, and that American law schools should expand their curricular offerings to include some class or classes covering the post-conviction period. There are innumerable arguments supporting this reform. These include the sheer number of people in custody, the extreme vulnerability of this population and its enormous unmet legal need, and the fact that any law student who is planning a career in criminal justice — and thus involved in the process by which people are sent to prison — should be exposed to the realities of the American penal system and its governing legal framework. This essay canvasses these and other reasons for the proposed reform, suggests what a course in Prison Law might cover, sketches the possible contents of a broader post-conviction curriculum, and argues that the current gap in the course offerings of most law schools only reinforces the invisibility of vast carceral system currently operating in the United States and the millions of Americans caught up in it.”

See too Giovanna Shay’s post at PrawfsBlawg from last year: “Why Do Law Schools Overlook the Incarcerated?”

Some relevant websites and blogs:

California Correctional Crisis

Center for Justice and Reconciliation           

Death Penalty Focus 

Death Penalty Information Center 

“Evolving Standards of Decency:” A Prisoners’ Rights Law Blog  

Justice Policy Institute

The Real Cost of Prisons Project

Sentencing Law and Policy 

The Sentencing Project 

Vera Institute of Justice  

Women’s Prison Association (WPA)

Reading “Hamlet” Behind Bars

“The Bard of Avon in Prison,” my latest guest post at The Faculty Lounge.

Israel & Gaza

Here are some pieces I found useful for understanding the Palestinian struggle as incarnate in the latest conflict between Gaza and Israel:

Juan Cole, “Top Ten Myths about the Israeli Attack on Gaza” 

Colin Dayan, “How Not to Talk about Gaza”

Richard Falk, “The Latest Gaza Catastrophe: Will They Ever Learn?” 

Adam Goldberg,  “Gilad Sharon, Son Of Former Israeli Prime Minister Ariel Sharon, Writes Op-Ed: ‘We Need To Flatten Entire Neighborhoods In Gaza’”

Glenn Greenwald, “Stop pretending the US is an uninvolved, helpless party in the Israeli assault on Gaza”

Mehdi Hasan, “Ten Things You Need to Know About Gaza”

Nir Hasson, “Israeli peace activist: Hamas leader Jabari killed amid talks on long-term truce”

Meir Javendanfar, “A Gaza Ground Invasion Will End Badly”

Daoud Kuttab, “Israel’s Failed Strategy”

John Mearsheimer, “A Pillar Built on Sand”

Elizabeth Murray, “Likening Palestinians to Blades of Grass”

Vijay Prashad, “The Agonies of Susan Rice: Gaza and the Negroponte Doctrine”

Adam Shatz, “Why Israel Didn’t Win”

Robert Wright, “When Will the Economic Blockade of Gaza End?”

The latest from The New York Times: “Israel Warns of ‘Expansion’ as Attack Widens to Media Sites”

and the Los Angeles Times: “In Gaza, Palestinians Torn Between Pressing On and Ending Fight”  “Likelihood of Israel Launching Ground Invasion in Gaza Grows”

Picture—Columns of smoke rise following an Israeli air strike in Gaza City, Nov. 14, 2012. Image by Adel Hana/AP Photo. Courtesy of Jadaliyya.

Addendum: I’ve also posted the latest draft of my compilation on the Israeli-Palestinian conflict at The Faculty Lounge.

Cultivating the Exquisite Pleasures of Bibliophilia

Dan Filler’s recent post on this country’s best independent bookstores at The Faculty Lounge inspired quite a few readers to chime in with their suggestions, most of which Dan added to the original list. Last year I shared two obituary notices for George Whitman (1913-2011), the eccentric proprietor of the Shakespeare and Company bookstore in Paris. Whitman was an eccentric in the best and endearing sense, that is, he was a “most unphony person” in the words of his daughter Sylvia. I’ve yet to visit Shakespeare and Company, but in my mind’s eye (and with the aid of a few photographs of the interior and exterior of the shop) it is the consummate bookstore.

One of the suggestions from my hometown was Chaucer’s Bookstore, which is the subject of a piece in yesterday’s Los Angeles Times by Pico Iyer, as regular readers of our blog know, a dear friend (his mother, Nandini, a former teacher of mine, happens to be my best friend) who recently penned a wonderful book about Graham Greene…and his late father, Raghavan Iyer: The Man Within My Head (Alfred A. Knopf, 2012). Pico reminds us why we remain profoundly loyal to and quite fond of the independent bookstore:

“There was once a little bookstore, tucked into an unglamorous mall on the wrong side of town, where few visitors were likely to stumble upon it. Its owner had opened a small shop in 1974 with a modest bequest from her mother, and she and her husband had had to dip into their life insurance funds to keep it going. People from across the county drove for miles to buy books there — and to see friends, to pick up free copies of the New York Times Book Review, to special-order out-of-print works no one else could be bothered to find. But these days, so it was said, it was easier, cheaper — more fun — to shop online. A computer could read your taste better than you could. One click could bring you the whole world, radically discounted.

Just as Amazon.com was getting going, a large store called Borders came into the small town and set up a three-story emporium at its central intersection. This bright new palace sold CDs and boasted aisles full of magazines and cookies and coffee; musicians struck up concerts outside its entrance; thousands of books were sold at vastly marked-down prices; and it used the cozy chairs and community air of a neighborhood store to crafty corporate advantage.

But a few years later, to everyone’s surprise, the huge citadel of books, next to a free, multistory parking lot and a five-screen cinema in downtown Santa Barbara, closed. Just one week before, on the last day of 2010, the sprawling Barnes & Noble bookstore across the street from it, in the chicest mall downtown, had also shut its doors. Then the Borders near the town's large public university closed.

Online retailers and e-readers had become ubiquitous. But the little bookstore called Chaucer’s just kept growing and growing, housing more books — 150,000 and counting — in its happily overcrowded aisles than the central megastore had carried in a space six times as big.

How could this happen? Well, 24 of Chaucer's 26 employees work there full-time, many of them for more than 10 years. They have an investment in the concern that the part-time workers in big-box bookstores usually do not.

People come there just to browse through a carnival-like children’s room of books and toys and games. They come there to meet dates, to receive personal commendations, often to buy nothing at all. They come there as to a community center, a sanctuary or a trusted friend’s living room (albeit a living room where Salman Rushdie is reading from his latest, and sometime-local Sue Grafton is sitting around for four hours to chat with her many fans). Chaucer’s sells no coffee or remainders, but it offers teachers 20% discounts and holds two book fairs a year to raise money for local schools.

So perhaps the story of the bookstore stands for something larger than mere books. Most of us can get anything we want online these days — except for the tactile reassurance of human contact, the chance to do nothing at all and a sense of connection that persists even after the electricity has gone off and the batteries run out. Convenience is not always an ideal substitute for companionship, and speed isn’t infallibly the fastest way to well-being. Even the $2 — or $10 — discounts that corporations can offer may exact a cost at some deeper level that sometimes we find ourselves paying and paying.” [….]

Pico’s essay is adapted from a forthcoming volume of writers “celebra[ting] their favorite places to browse, read, and shop,” My Bookstore, edited by Ronald Rice (Black Dog & Leventhal Publishers, 2012)

Addendum: In a popular online forum for local news and other regional stuff, several readers have taken offence at Pico’s reference to the “wrong side of town” in the opening sentence, a touchy subject in a city populated with not a few folks possessed of an overweening economic self-interest in real estate valuations and citizens sensitive to crime statistics generally and the effects of a considerable amount of geographically-based (e.g., ‘Westside,’ 'Eastside’) gang banging (in the sense of participation in gang-related activities from graffiti vandalism to violence of one kind or another) in particular; or in a city economically dependent on tourism or with demeaning and condescending class- and race-based sentiments regularly emanating from the literal and figurative heights of the socio-economically and politically advantaged (as well as from those who dream daily of joining their ranks). But I strongly believe Pico was not referring to the “wrong side of town” in that sense, but rather in the manner befitting one considering the ideal location for a bookstore of this sort, the most successful of which have been located historically in the downtown area (hence the last clause of the sentence in question: ‘where few visitors were likely to stumble upon it’). Indeed, across the street from the city library in the heart of downtown sits California’s oldest used bookstore, The Book Den.

To Barbeque or Not to Barbeque: Eating Our (nonhuman) Animal Brothers & Sisters

I can’t join Al Brophy at The Faculty Lounge (where I’m guest-blogging this month) in his celebration of barbeque, an enthusiasm for which I suspect is shared by not a few Faculty Lounge and Religious Left Law readers, barbeque being but the culmination of a barbaric ritual that commences with the industrialized slaughter and sacrifice of nonhuman animals. There are sundry religious, ethical, ecological, health, and economic arguments against the eating of animals and thus for adopting vegetarianism or veganism as an alternative diet (I’ll leave it to Professors Michael Dorf, Sherry Colb, and Neil Buchanan to argue for the merits of veganism over vegetarianism). A sample of some of the arguments are found below: 

• Adams, Carol J. The Sexual Politics of Meat: A Feminist-Vegetarian Critical Theory. New York: Continuum, 1990.
• Adams, Carol J. Living Among Meat Eaters: The Vegetarian’s Survival Handbook. New York: Three Rivers Press, 2001.
• DeGrazia, David. Taking Animals Seriously: Mental Life and Moral Status. Cambridge, UK: Cambridge University Press, 1996.
• Fox, Michael Allen. Deep Vegetarianism. Philadelphia, PA: Temple University Press, 1999.
• Linzey, Andrew. Why Animal Suffering Matters: Philosophy, Theology, and Practical Ethics. New York: Oxford University Press, 2009.
• Midgley, Mary. Animals and Why They Matter. Athens, GA: University of Georgia Press, 1983.
• Regan, Tom. The Case for Animal Rights. Berkeley, CA: University of California Press, 2nd ed., 2004.  
• Salt, Henry S. Animals’ Rights Considered in Relation to Social Progress. London: Centaur Press, 1980 (first published in 1892).
• Schwartz, Richard H. Judaism and Vegetarianism. New York: Lantern Books, revised ed., 2001.
• Singer, Peter. Animal Liberation. New York: The New York Review of Books, 2nd ed., 1990.
• Sunstein, Cass R. and Martha C. Nussbaum, eds. Animal Rights: Current Debates and New Directions. New York: Oxford University Press, 2004.

For Buddhist perspectives, see Shabkar.org, “a non-sectarian website dedicated to vegetarianism as a way of life for Buddhists of all schools. The site takes its name from Shabkar Tsodruk Rangdrol (1781-1851), the great Tibetan yogi who espoused the ideals of vegetarianism.”

For a Christian perspective, see the works of Andrew Linzey (above), the Director of the Oxford Centre for Animal Ethics.

For an Islamic perspective, see Islamic Concern.com.

One of my favorite blogs devoted to ethical and legal topics concerning nonhuman animals is Animal Blawg, “a blog [that] focuses on animal law, ethics and policy.  It provides a forum for community and collegiality as well as debate and the exchange of ideas.  Founded by Pace Law School professors, David N. Cassuto, Luis E. Chiesa and law student, Suzanne McMillan, the blog is now maintained by David Cassuto.  Contributors include academics, practitioners, and law students, as well as other interested members of the animal advocacy community.”

An early version (2008) of my bibliography for “animal ethics, rights, and law” is found here.

Finally, I just read a compelling review in the Atlantic of Timothy Pachirat’s Every Twelve Seconds: Industrialized Slaughter and the Politics of Sight (Yale University Press, 2011), a sample from which follows:

“The comprehensiveness of his [i.e., Pachirat’s] experience makes Every Twelve Seconds especially valuable, considering the meat industry’s campaign to stamp out precisely this sort of research. Iowa and Utah have already passed laws making it a crime to gain employment at a slaughterhouse for the purpose of documenting abuses and code violations; similar ‘ag gag’ bills [link added] have been proposed in other states. It is easy to imagine the uproar that would ensue if the restaurant industry, which is a model of hygiene in comparison, were to demand comparable protection from whistle-blowers. When it comes to the meat supply, however, America appears none too troubled by the prospect of its blindfolding; the nation would rather take its chances with E. coli than risk channel-surfing into a slaughterhouse. Though ‘foodie’ writers occasionally show interest in the act of slaughter, they prefer to witness it outdoors, on some idyllic farm, the better to stylize it into a time-hallowed, mutually respectful communing of man and beast. Readers are left to infer that their local meat factory is merely maximizing the number of communings per minute; the media fuss over Temple Grandin, a purportedly cow-loving consultant to Big Beef, has an obvious role to play here. But all this wishful thinking fails at the slaughterhouse door. Barring recourse to the inducements the animals get, it would be hard to coax average Americans inside even for a minute. As George Bataille once wrote, in a remark that leads off Pachirat’s first chapter: ‘The slaughterhouse is cursed and quarantined like a boat carrying cholera.’ [….]

The most interesting aspect of Pachirat’s book is its discovery that our slaughterhouse workers are themselves deeply uneasy about the cruelty they are forced to inflict. This runs counter to the PR line according to which everything runs wonderfully humanely except when some psychopath slips into the system. Evidently there is no uncruel way to kill a large and terrified animal every 12 seconds, the pace now set by industry greed. Just moving the cattle along the chutes leaves employees feeling shaken and ashamed.

The cow struggles to right itself, but with the narrow passageway and downward slope slick with feces and vomit, it cannot get up … Fernando inserts the rings through the cow’s nostrils, clamps them shut, and attaches them to a yellow rope, which he jerks heavily … Finally, the men pull so hard that they rip the cow’s nostrils and the nose rings fly out, hitting Juan in the hand. ‘Fuck!’ he screams … With electric prods Gilberto and Fernando push the remaining cattle over the downed cow, and they stomp on its neck and underbelly trying to escape the electric shock. Leaning against the wall, I look at Richard, who says shakily, ‘Man, this isn’t right, running them other cattle over this cow like that. I’m not going to take part in this. I’m not going to stand and watch this.’

Small wonder that some estimates put American slaughterhouses’ annual employee turnover rate at more than 100 percent, or that a high degree of euphemism characterizes even their internal communication. Live cattle are referred to as ‘beef,’ the animals as having ‘come in to die,’ while the employee who must fire the bolt into each quaking cow’s skull is a ‘knocker.’

Pachirat writes about how even abusive workers shrink from doing the ‘knocking.’ When Pachirat says he wants to try, a colleague replies, ‘Nobody wants to do that. You’ll have bad dreams.’ A woman in quality control feels the same: ‘I already feel guilty enough as it is … Especially when I go out there and see their cute little faces.’ Pachirat samples the work anyway, much to another colleague’s dismay:

When I tell Tyler I shot three animals with the knocking gun the day before, he urges me to stop.

‘Man, that will mess you up. Knockers have to see a psychologist or a psychiatrist or whatever they’re called every three months.’

‘Really? Why?’

‘Because, man, that’s killing,’ he says; ‘that shit will fuck you up for real.’” [….]

Addendum (November 4): I’m curious what readers think of the proposal in this essay by Jeffrey Leslie and Cass Sunstein: “Animal Rights without Controversy.”

Strictly Speaking, It’s Not Blaming the Victims for Our Economic Malaise, But Rather the Blaming of Those Who Support Public Policies that Help the Poor & Unemployed!

I admit to wondering if some arguments warrant any attention whatsoever, and not only because they emanate from the lofty perches of economics professors at the University of Chicago: “Casey Mulligan…claims that the continued weakness of employment in the US is due to policies introduced in 2008 and 2009, which ‘greatly enhanced the help given to the poor and unemployed — from expansion of food-stamp eligibility to enlargement of food-stamp benefits to payment of unemployment bonuses — sharply eroding (and, in some cases, fully eliminating) the incentives for workers to seek and retain jobs, and for employers to create jobs or avoid layoffs.’” This is actually a variation on an old and tired argument which rests on eminently arguable assumptions and silly but stubbornly persistent beliefs about human nature and moral psychology in the context of alleged “economic efficiency” (I happen to believe these are historically associated with the Christian doctrine of ‘original sin’), well-illustrated by an infamous proposition from Charles Murray’s influential book, Losing Ground: American Social Policy, 1950-1980 (1984): “People are not inherently hard working or moral. In the absence of countervailing influences, people will avoid work and be amoral”(146).* Please see John Quiggin’s post at Crooked Timber.

* For a characteristically lucid discussion, see Robert E. Goodin’s chapter on “Efficiency” in his Reasons for Welfare: The Political Theory of the Welfare State (1988): 229-256. See too the section by Goodin, “The Morality of Incentives and Deterrence,” in David Schmidtz and Robert E. Goodin, Social Welfare and Individual Responsibility: For and Against (1998): 172-189. As to the pernicious influence of at least one strain of Christian moral psychology—that is, one of Puritan provenance—see “The new medicine for poverty,” in R.H. Tawney’s classic but somewhat neglected study Religion and the Rise of Capitalism (1926): 253-273.

Eric Hobsbawm (June 9, 1917 – October 1, 2012)

“Once again it is manifest that the economic system’s operations must be analysed both historically, as a phase and not the end of history, and realistically, i.e., not in terms of an ideal market equilibrium, but of a built-in mechanism that generates potentially system-changing periodic crises. The present one may be one of these. Once again it is evident that even between major crises, ‘the market’ has no answer to the major problems confronting the twenty-first century: that unlimited and increasingly high-tech economic growth in the pursuit of unsustainable profit produces global wealth, but at the cost of an increasingly dispensable factor of production, human labour, and, one might add, of the globe’s natural resources. Economic and political liberalism, singly or in combination, cannot provide the solution to the problems of the twenty-first century. Once again the time has come to take Marx seriously.”—Eric Hobsbawm

From the Wikipedia entry (albeit edited):

Eric (John Ernest) Hobsbawm (9 June 1917 - 1 October 2012) was a British Marxist historian, public intellectual, and author. His best known works include the trilogy about the long 19th century: The Age of Revolution: Europe 1789–1848, The Age of Capital: 1848-1875 and The Age of Empire: 1875–1914; and an edited volume which introduced the influential idea of ‘invented traditions.’ [….]

He was a Marxist and was a long-standing member of the now defunct Communist Party of Great Britain (CPGB) and the associated Communist Party Historians Group. He was president of Birkbeck, University of London. He was appointed a Companion of Honour in 1998, a high-ranking British honour for outstanding achievement in the arts, literature, music, science, politics, industry or religion . In 2003 he was awarded the Balzan Prize for European History since 1900, ‘For his brilliant analysis of the troubled history of twentieth-century Europe and for his ability to combine in-depth historical research with great literary talent.’ [….]

In 1994, Neal Ascherson said of Hobsbawm: ‘No historian now writing in English can match his overwhelming command of fact and source. But the key word is “command.” Hobsbawm’s capacity to store and retrieve detail has now reached a scale normally approached only by large archives with big staffs.’ In 2002, Hobsbawm was described by right-leaning magazine The Spectator as ‘arguably our greatest living historian—not only Britain’s, but the world’s,’ while Niall Ferguson wrote: ‘That Hobsbawm is one of the great historians of his generation is undeniable. . . . His quartet of books beginning with The Age of Revolution and ending with The Age of Extremes constitute the best starting point I know for anyone who wishes to begin studying modern history. Nothing else produced by the British Marxist historians will endure as these books will.’ In 2003, The New York Times described him as ‘one of the great British historians of his age, an unapologetic Communist and a polymath whose erudite, elegantly written histories are still widely read in schools here and abroad.’ James Joll wrote in The New York Review of Books that ‘Eric Hobsbawm’s nineteenth century trilogy is one of the great achievements of historical writing in recent decades.’ Ian Kershaw said that Hobsbawm’s take on the twentieth century, his 1994 book, The Age of Extremes, consisted of ‘masterly analysis’….” [….]

*    *    *

Hobsbawm was once a member of a remarkable fraternity of historians: the Communist Party Historians Group, that included such luminaries as Maurice Dobb, Christopher Hill, Victor Kiernan, George Rudé, Dorothy Thompson (née Towers), and E.P. Thompson. This group (sans some members after 1956) continued until the dissolution of the Communist Party of Great Britain in 1991. “In early 1992 it reconstituted itself as the Socialist History Society, and made full membership available to anybody regardless of party affiliation. The SHS now publishes a twice-yearly journal ‘Socialist History’ and a series of monographs called ‘Occasional Papers.’”

Obituary notice from The Guardian. See too Marc Mullholland’s tribute in Jacobin.

In addition the those cited above, among Hobsbawm’s many books I recommend:

• Primitive Rebels: Studies in Archaic Forms of Social Movements in the 19th and 20th Centuries (1959)
• Labouring Men: Studies in the History of Labour (1964)
• Workers: Worlds of Labour (1984)
• Nations and Nationalism since 1780 (2nd ed., 1992)
• Uncommon People: Resistance, Rebellion, and Jazz (1998)
• How to Change the World: Reflections on Marx and Marxism (2011)  

Social Gradients of Health

One would reasonably infer from the following article in today’s Los Angeles Times that the findings of the study are novel or unusual, yet as Michael Marmot writes, “British statistics have shown, for as long as one has cared to look, that health follows a social gradient: the higher the social position, the better the health. I became aware of this gradient only when I started to analyze data from the first Whitehall study of British civil servants [Marmot, M.G., G. Rose, M. Shipley, and P.J.S. Hamilton, ‘Employment grade and coronary heart disease in British civil servants,’ Journal of Epidemiology and Community Health (1978) 32: 244-249].” See: Michael Marmot and Richard G. Wilkinson, eds., Social Determinants of Health (New York: Oxford University Press, 2nd ed., 2006). For a brief introduction to the Whitehall study and further discussion, please see Gopal Sreenivasan’s entry, “Justice, Inequality, and Health,” in the Stanford Encyclopedia of Philosophy. In short: “The empirical literature’s most significant and powerful reported finding can actually be replicated with any of the listed candidate social determinants of health (income, education, occupational rank, social class): This is the existence, within a given society, of a social gradient in health.”

“Stressful at the Top? Not Really, Study Finds”

Harvard researchers find leaders in business, politics, and the military report lower anxiety levels than others. The key to their serenity is control.

By Melissa Healy (September 25, 2012)

“Management consultants say 60% of senior executives experience high stress and anxiety on a regular basis, and a thriving industry of motivational speakers teaches business leaders how to manage their corrosive burden of stress. But just how uneasy lies the head that wears the crown? Not so uneasy, it turns out.

A new study reveals that those who sit atop the nation’s political, military, business and nonprofit organizations are actually pretty chill. Compared with people of similar age, gender and ethnicity who haven’t made it to the top, leaders pronounced themselves less stressed and anxious. And their levels of cortisol, a hormone that circulates at high levels in the chronically stressed, told the same story. The source of the leaders' relative serenity was pretty simple: control.

Compared with workers who toil in lower echelons of the American economy, the leaders studied by a group of Harvard University researchers enjoyed control over their schedules, their daily living circumstances, their financial security, their enterprises and their lives.

‘Leaders possess a particular psychological resource — a sense of control — that may buffer against stress,’ the research team reported Monday in Proceedings of the National Academies of Sciences. [….]

‘It’s clear that having a sense of control is protective against stress,’ said Nichole Lighthall, who researches stress and its effects at Duke University and was not involved in the new study. ‘People in a company at all levels may be affected by the market and its unpredictability,’ she said. But while rank-and-file employees may worry about being laid off, chief executives can pretty much rest assured that ‘they’ll keep their position in society, their superiority, their lifestyle and their income’ even if the organization over which they preside suffers, she said.

To gather leaders for study, the Harvard team took advantage of the university’s array of programs for mid-career and senior professionals. Such students — some at Harvard for just a week, others for as long as a year or two — are generally rising stars being groomed for promotion within their organizations. Members of Harvard’s Decision Science Laboratory invited them to take part in their studies.

Social psychologist Gary Sherman and his colleagues recruited 148 people who managed others in military, government, business and nonprofit organizations. Each participant was asked to complete an inventory of psychological traits and a questionnaire that captures the extent to which a person feels a sense of power in general and in his relationships with others. Participants also were asked to describe their jobs and count the workers below them in the hierarchy. Finally, the study members provided a sample of their saliva so the researchers could measure their level of cortisol.

For comparison, the study drew 65 people from the general community who did not exercise management control over others. Researcher had these participants complete the same inventories and measured their cortisol. They ensured that both groups — leaders and non-leaders — were identical in terms of their age, gender and ethnic composition. The results showed that compared to non-leaders, leaders’ sense of control and propensity toward anxiety were lower. So were their cortisol levels, providing physiological proof that they were less stressed. When the researchers focused on differences within a group of 75 leaders, they found that the larger the pool of workers an individual managed, the lower he or she scored on measures of stress and anxiety.

Samuel Barondes, director of UC San Francisco’s Center for Neurobiology and Psychiatry, said the study didn’t reveal whether leaders became less stressed as they climbed toward the top or whether they were less prone to stress in the first place, facilitating their ascent. He suspects it’s a combination of both, but either way, ‘once you’ve made it and are not at the whim of capricious meanies above you in the hierarchy, you are less stressed,’ said Barondes, author of Making Sense of People: Decoding the Mysteries of Personality.” [….]

So we await another study reaffirming what we already know with regard to the converse case: those at the bottom of the occupational hierarchy (leaving aside the unemployed) suffer more stress (and the cumulative deleterious health effects linked to same) than those above them in occupational rank (or in any of the other social determinants: education, income, and social class, for example).

Toward an Understanding of Classical Chinese Medicine, Part 2: From Classical to Traditional Chinese Medicine

Our first post in the series is here.

Even if one believes that the theory and praxis of Classical Chinese Medicine (CCM) should be subject in its entirety to the scientific adjudications of what has come to be called evidence-based medicine (EBM) (and I do not believe it should be wholly subject to such a sieve), it is possible to at least imagine how CCM might fall under the rubric of “science” generally in a broad and historically-based construal of the meaning of such an enterprise, as one of the pioneers in the cross-cultural study of CCM, Nathan Sivin, has argued:

“The data collected over the centuries about the body, health and disorders were structured by the concepts of Nature…[of proto-Taoist and ancient provenance], forming a coherent body of theory used to diagnose and treat illness. Classical [Chinese] medicine deserves the adjective ‘scientific’ no less (but no more) than its counterparts in Western culture until recent times. [….] What we call medicine incorporated and imposed order on experience related to every aspect of health, disease, and injury. One Chinese scheme of its major divisions include theoretical studies of health and disorder; therapeutics; the theory and practice of longevity techniques, including sexual hygiene; pharmacognosy, and veterinary medicine. [….] Prescriptions made up of both crude drugs and extracts were commonly used in combination with a great variety of other therapeutic means, including acupuncture and moxibustion.” (Sivin 1990: no pagination)

The fact that we can make sense of Sivin’s description as giving as an introduction to a science of sorts, that we find it intelligible and plausible, speaks to the question of commensurability or incommensurability between CCM and Western scientific medicine, which is clearly a matter of degree (cf. medicine in the West ‘until recent times’ above) and is arguably aspectual in nature. Or, we might see the relation between EBM and CCM as in some ways analogous to that between laws and social norms, two sets of “rules,” the former formal and the latter informal, with some conceptual and practical overlap between the two sets, and including mutual interaction between at least some of the parts of both sets (as when, for example, social norms give way to laws or laws reinforce or even bring into being social norms). The sets are therefore distinguishable, and thus there is some measure of prima facie incommensurability owing to linguistic, conceptual, ontological and explanatory differences between EBM and CCM we have yet to discuss (and thus deserve systematic exploration). Finally, and perhaps most importantly, we might begin to think what is could mean for EBM to be diagnostically, physiologically, and therapeutically focused on the body, while CCM encompasses the whole person (herein lies the intuitive attraction of ‘holistic’ medicine): the body in this case including the “heart-mind,” xin (or ‘mind-heart,’ the source of both intellectual and emotional reactions, encompassing what we intend by the term ‘consciousness’ in cognitive and conative senses, but even more, the notion of mind, where mind is not reducible to the brain and the body is a necessary but not sufficient condition for the mind, the latter extending out into the world, as we say). Xin lies at the heart of the Chinese understanding of the person or shenti. As Yanhua Zhang explains, while shenti can be translated as “body,” it does not have the “container” connotations one finds in English (and derived from its roots in Old German) and the associated images of a physical, objective, and anatomical entity. Shenti, writes Zhang, “implies a person or self with all the connotations of the physical, social, and mindful” (2007: 55). 

For now, let us cash in our earlier promissory note on the difference in meaning between what is termed “Traditional Chinese Medicine” (TCM) and CCM. Oddly perhaps, it so happens that TCM is not, in fact, traditional Chinese medicine, and thus what is ostensibly meant by the term is more accurately called Classical Chinese Medicine. Perhaps we’re a bit jaded when it comes to the precise scope of such nomenclature: the World Series in baseball is not truly global, and most of us are familiar with euphemisms and doublespeak like “Peacekeeper Missile,” “collateral damage” and “pacification programs.” In many not insignificant respects, it so happens that TCM is decidedly modern, a selective appropriation of specific medical modalities mined from what is better termed Classical Chinese medicine (CCM). What was christened “TCM” in the second half of the twentieth involves the ideological legitimation (see below for the motley motivating interests) and selective use of classical Chinese diagnostic techniques and therapeutic regimens by the People’s Republic of China (PRC) under Mao Zedong in the late 1950s and early 1960s. Whatever one thinks of the specific ideological rationale for the recognition of the therapeutic value of CCM among Chinese Communists under Mao, it is important to recognize that Western science and medicine has not been allowed to wholly trump indigenous medical doctrines and therapeutic modalities and practices in China, thus “Diversity is observable at every level of Chinese medical discourse and practice” (Zhang: 9), and TCM is not subject to the sieve of Western biomedicine, let alone EBM.

At first the Communists followed in the footsteps of their Nationalist government opponents in characterizing traditional Chinese medicine as exemplifying superstition and magical thinking, in other words, a theory and practice inimical to modernity in general and Western biomedicine (xiyi) in particular. Interestingly, from the early nineteenth to early twentieth centuries in China there was an effort toward a via media or rapprochement between the old and the new from within the medical profession by those committed to the hallowed “ideal of the broadly educated master physician” (the movement now referred to as the Chinese-Western Integration School) as they attempted to incorporate some features of modern biomedicine “into the traditional mother body of Chinese medicine” (Fruehauf 1999, sans pagination). The terms of this incorporation, however, were set by the parameters of CCM. This endeavor was historically superseded by the naked politicization of Chinese medicine in the first half of the twentieth century when adjectives denoting and connoting the traditional properties of CCM, much like the Confucian worldview, became “despicable symbol[s] of everything old and backward” (Fruehauf), the Nationalists and Communists alike adopting attitudes akin to the Jacobin revolutionaries toward the ancien régime.

Mao’s later public embrace of CCM (as TCM) garnered widespread support among the masses, a noticeable portion of which had earlier taken to the streets when Kuomintang public health officials initiated legislative proposals with the goal of abolishing the “Old Medicine.” Baptised “Traditional Chinese Medicine,” colleges became its first institutional vehicle, with hospitals and clinics as well soon vigorously propagating putatively traditional Chinese medicine. While nominally hearkening back to an earlier era, Mao clarified the nature of State-directed TCM, speaking of “Chinese-Western medicine integration” in a manner that assured everyone that classical Chinese medicine would no longer be transmitted through the venerable hands of its lineage holders, that is, from master to disciple, with modes of transmission primarily “secret” and “personal” (cf. Hsu 1999). To be sure, Mao’s programmatic efforts to modernize Chinese medicine, in effect to standardize its knowledge and practice with the considerable resources available to the State, has long and well-established precedent in Chinese history. But standardization in this case is accomplished in reliance on philosophical, political, bureaucratic, scientific, technological, and pedagogical ideas, methods and institutions ineluctably associated with modernity. Of course it is naïve, even fantastical, to think CCM could carry over into our time and place unscathed or unaffected by a confrontation (at the levels of both doctrine and practice) with this or that facet of modernity (if you prefer, post-modernity). But we might consider—as a thought-experiment, an act of imaginative counterfactual reasoning—how the nature and pace of such a confrontation (and negotiation) might vary, depending on several sorts of variables, for example, its leading agents: The State? Physicians? Regional public health officials? Politicians? Physicians and their patients? Sectors of civil society free from State coordination or manipulation electoral outcomes? And so on. Hsu (1999) proffers the following motivating interests in support of the official and informal ideological sanctioning of TCM in the People’s Republic of China: “nationalism, Confucian values, humanitarian ideals, reformist and Enlightenment movements, the pragmatic politics of a party in pursuit of power, and economic considerations fo how to allocate manpower and scarce resources” (7). These motley interests remind us why we should distinguish between TCM and CCM, even if the latter has also been subject to historical forces that assure us its doctrine and therapies have never been frozen in time (cf. the reasons for Peter Eckman’s (2007) further distinction between TCM and ‘TOM,’ traditional Oriental medicine, the ‘mother discipline’ from which the former emerged). 

CCM is in a subordinate and severely circumscribed role vis-à-vis not only Western biomedicine but TCM as well, a result of Mao’s vision of “Chinese-Western medicine integration,” as Hsu makes clear: “TCM…is generally referred to as the ‘modernised’ (xiandaihuade), ‘scientific’ (kexuehuade), ‘systematic’ (xitonghuade), and ‘standardised’ (guifanhuade) Chinese medicine” (7). Insofar as traditional or classical Chinese medicine is indissolubly bound up with ancient religio-philosophical ideas (e.g., dao [or tao], qi [or ch’i], yin/yang, wuxing [Five Phases], and shen [spirit]) essential to its doctrine, as well as shamanic, temple-based, divinatory, qigong (breath control or meditation), and home-based herbal drug and other pre-modern practices that conspicuously clash with Mao’s variation on the Marxist-Leninist ideological theme, it is not too difficult to distinguish TCM from CCM. Indeed, Mao’s “Chinese-Western medicine integration,” as TCM, calls to mind Eric Hobsbawm’s oft-cited because important observation that “‘Traditions’ which appear or claim to be old are often quite recent in origin and sometimes invented” (Hobsbawm and Ranger 1983: 1). Insofar as biomedical science and EBM serve as the sieve through which classical Chinese therapeutic modalities must pass before they are rationally or scientifically (hence medically) acceptable in the West, it would appear biomedicine is following in Mao’s footsteps: “At the least traditional end of the spectrum, dominant during the Cultural Revolution, acupuncture became merely a form of physical therapy devoid of any theoretical basis” (Eckman 2007: 182). And those attracted to TCM because they are generally enamored of all things exotic and Orientalist, might consider the fact that acupuncture and moxibustion had been used in Europe for roughly 300 years and were popular among physicians in early nineteenth century America before their recent ascendancy as a therapeutic regimen prominent in alternative or complementary medicine (see Sivin 1990, no pagination).  All the same, it would be inaccurate to portray TCM as a rigid, unchanging discipline. Actually, depending on the political climate at the time, TCM has encompassed a wide variety of approaches—although it has never explicitly accommodated the more mystical, spiritual and shamanistic practices. Nevertheless, even that may be changing with the recent interest in the medical uses of both external and internal Qi Gong. These practices are inextricably connected to meditation and other “spiritual” methods, and as yet have no experimentally verifiable material basis (Eckman 2007: 89).

Chinese Communists have of course stressed the limitations of the historically dominant model of physicians identified as “largely [an] hereditary office holding elite before the present millenium, but one based increasingly on wealth and achievement from the eleventh century on” (Sivin 1999). Furthermore, and consequently, they keenly appreciate the historical distinction “between the relatively few literate, well-born physicians who left the enormous written record, and the plebian practitioners of every stripe, generally illiterate for most of Chinese history, who cared for the overwhelming majority of the population” (Sivin, 1999). And yet the “enormous written record” referred to here, as Sivin says, was not primarily or merely “abstact bodies of theories, but keys to diagnosis, prognosis, and therapy. Mastering them was a necessary step on the way to becoming a good doctor.” To repeat: such mastery was achieved in the intimate interpersonal context of the master/student relationship defined by its personal and secret modes of transmission of medical knowledge and practice. The distinction between elite and plebian doctors was (and is) transcended in part by the nature of the transformation of CCM into TCM under the aegis of the PRC, effectively serving to democratize aspects of CCM that were once the prerogative of well-born physicians and their equally if not better-placed patients. I would argue that one salutary aspect of this democratization was well expressed in China’s “barefoot doctor” program, an ambitious, imaginative, and long-overdue attempt to extend the concrete achievements and virtues of urban public health into the countryside (on the eve of the 1949 revolution, about 80 percent of the population were rural peasants). Still, the “democratization” of Chinese medicine (e.g., the ‘barefoot doctor’ program) has been purchased at a high price: Recent institutional developments, most of them tied to market imperatives and priorities established in the wake of “cowboy capitalism” in China and which give pride of place to Western medical concepts and practices, are “finaliz[ing] the process of ‘evolution by integration’ that Mao had prescribed for Chinese medicine  40 years ago—a process that involves gutting the indigenous art of its spirit and essence [or religious and philosophical warrant] and subsequently appropriating its material hull (i.e., herbs and techniques) into the realm of a medicine that declares itself scientifically superior” (Fruehauf 1999).

References & Further Reading:

• Adler, Jonathan, “Epistemological Problems of Testimony,” The Stanford Encyclopedia of Philosophy (Fall 2012) Edward N. Zalta (ed.)                  http://plato.stanford.edu/archives/fall2012/entries/testimony episprob/.
• Angell, Marcia. “The Epidemic of Mental Illness: Why?,” The New York Review of Books, June 23, 2011.
• Angell, Marcia. “The Illusions of Psychiatry,” The New York Review of Books, July 14, 2011.
• Bensky, Dan and Randall Barolet. Chinese Herbal Medicine: Formula and Strategies. Seattle, WA: Eastland Press, 1990.
• Bensky, Dan, Steven Clavey, and Erich Stöger. Chinese Herbal Medicine: Materia Medica. Seattle, WA: Eastland Press, 3rd ed., 2004. 
• Bensoussan, Alan. The Vital Meridian: A Modern Exploration of Acupuncture. Melbourne: Churchill Livingstone, 1991.
• Bivins, Roberta. Alternative Medicine? A History. New York: Oxford University Press, 2007.
• Brody, Howard. Placebos and the Philosophy of Medicine: Clinical, Conceptual, and Ethical Issues. Chicago, IL: University of Chicago Press, 1980.
• Clark, Barry, tr. The Quintessence Tantras of Tibetan Buddhism. Ithaca, NY: Snow Lion Publications, 1995.
• Clifford, Terry. Tibetan Buddhist Medicine and Psychiatry: The Diamond Healing. Delhi: Motilal Banarsidass, 1994 (1984).
• Coady, C.A.J. Testimony: A Philosophical Study. Oxford, UK: Oxford University Press, 1992.
• Cohen, Michael H. Healing at the Borderland of Medicine and Religion. Chapel Hill, NC: University of North Carolina Press, 2006.
• Dallmayr, Fred. Beyond Orientalism: Essays on Cross-Cultural Encounter. Albany, NY: State University of New York Press, 1996.
• Dhonden, Yeshi (B. Alan Wallace, tr. and ed.) Healing from the Source: The Science and Lore of Tibetan Medicine. Ithaca, NY: Snow Lion Publications, 2000.
• Dupré, John. Human Nature and the Limits of Science. New York: Oxford University Press, 2001.
• Eckenweiler, Lisa A. and Felicia G. Cohen, eds. The Ethics of Bioethics: Mapping the Moral Landscape. Baltimore, MD: Johns Hopkins University Press, 2007.
• Eckman, Peter. In the Footsteps of the Yellow Emperor: Tracing the History of Traditional Acupuncture. San Francisco, CA: Long River Press, 2007.
• Evans, Dylan. Placebo: Mind over Matter in Modern Medicine. New York: Oxford University Press, 2004.
• Farquhar, Judith. Knowing Practice: The Clinical Encounter of Chinese Medicine. Boulder, CO: Westview Press, 1994.
• Fawley, Daivd. Yoga & Ayurveda: Self-Healing and Self-Realization. Twin Lakes, WI: Lotus Press, 1999.
• Fruehauf, Heiner. “Chinese Medicine in Crisis: Science, Politics, and the Making of ‘TCM,’” The Journal of Chinese Medicine, 61/6, October 1999. Online version (slightly longer): http://www.classicalchinesemedicine.org/ccm/index.htm 
• Gillet, Grant. Bioethics in the Clinic: Hippocratic Reflections. Baltimore, MD: Johns Hopkins University Press, 2004.
• Goldman, Alvin I. Knowledge in a Social World. New York: Oxford University Press, 1999.
• Godden, David M. and Douglas Walton. “A Theory of Presumption for Everyday Argumentation,” Pragmatics & Cognition 15: 2 (2007): 313-346.
• Gyatso, Desi Gyatso (Gavin Kilty, tr.) Mirror of Beryl: A Historical Introduction to Tibetan Buddhism. Boston, MA: Wisdom Publications, in association with the Institute of Tibetan Classics, 2010.
• Gyatso, Thinley and Chris Hakim. Essentials of Tibetan Traditional Medicine. Berkeley, CA: North Atlantic Books, 2010.
• Hacking, Ian. The Social Construction of What? Cambridge, MA: Harvard Unviersity Press, 1999.
• Hacking, Ian. Historical Ontology. Cambridge, MA: Harvard University Press, 2002.
• Harrington, Anne. The Cure Within: A History of Mind-Body Medicine. New York: W.W. Norton & Co., 2008.
• Harrington, Anne, ed. The Placebo Effect: An Interdisciplinary Exploration. Cambridge, MA: Harvard University Press, 1999.
• Heinze, Ruth Inge. Trance and Healing in Southeast Asia Today. Bangkok: White Lotus Press, 2nd ed., 1997.
• Hobsbawm, Eric and Terence Ranger, eds. The Invention of Tradition. Cambridge, UK: Cambridge University Press, 1983.
• Hsu, Elisabeth. The Transmission of Chinese Medicine. Cambridge, UK: Cambridge University Press, 1999.
• Hsu, Elisabeth, ed. Innovation in Chinese Medicine. Cambridge, UK: Cambridge University Press, 2001.
• Huang Ti Nei Ching Su Wên (The Yellow Emperor’s Classic of Internal Medicine) Ilza Veith, trans. Berkeley, CA: University of California Press, 2002.
• Kaptchuk, Ted J. The Web That Has No Weaver: Understanding Chinese Medicine. Chicago, IL: Contemporary Books, 2nd ed., 2000.
• Kolber, Adam J. “A Limited Defense of Clinical Placebo Deception,” Yale Law & Policy Review, Vol. 26, 2007; San Diego Legal Studies Paper No. 07-87. Available at SSRN: http://ssrn.com/abstract=967563.
• Kuriyama, Shigehisa. The Expressiveness of the Body and the Divergence of Greek and Chinese Medicine. New York: Zone Books, 1999.
• Leslie, Charles and Alan Young, eds. Paths to Asian Medical Knowledge. Berkeley, CA: University of California Press, 1992.
• Lloyd, Geoffrey and Nathan Sivin. The Way and the Word: Science and Medicine in Early China and Greece. New Haven, CT: Yale University Press, 2002.
• Maciocia, Giovanni. The Foundations of Chinese Medicine. Edinburgh: Churchill Livingstone, 1989.
• Maciocia, Giovanni. Diagnosis in Chinese Medicine: A Comprehensive Guide. Edinburgh: Churchill Livingstone, 2004.
• Maciocia, Giovanni. The Practice of Chinese Medicine: The Treatment of Diseases with Acupuncture and Chinese Herbs. Edinburgh: Churchill Livingstone, 2nd ed., 2007.
• Mirowski, Philip. Science-Mart: Privatizing American Science. Cambridge, MA: Harvard University Press, 2011.
• Moerman, Daniel E. Meaning, Medicine, and the “Placebo Effect.” Cambridge, UK: Cambridge University Press, 2002.
• Mou, Bo, ed. Comparative Approaches to Chinese Philosophy. Burlington, VT: Ashgate, 2003.
• Mou, Bo, ed. Two Roads to Wisdom? Chinese and Analytic Philosophical Traditions. Chicago, IL: Open Court, 2001.
• Needham, Joseph, et al., eds. Science and Civilisation in China, 7 Vols. Cambridge, UK: Cambridge University Press, 1954--.
• Porkert, Manfred. The Theoretical Foundations of Chinese Medicine. Cambridge, MA: MIT Press, 1974.
• Putnam, Hilary (James Conant, ed.). Realism with a Human Face. Cambridge, MA: Harvard University Press, 1990.
• Putnam, Hilary (James Conant, ed.). Words and Life. Cambridge, MA: Harvard University Press, 1994.
• Putnam, Hilary. The Threefold Cord: Mind, Body, and World. New York: Columbia University Press, 1999.
• Rescher, Nicholas. The Limits of Science. Pittsburgh, PA: University of Pittsburgh Press, 1999 ed.
• Rescher, Nicholas. Nature and Understanding: The Metaphysics of Science. New York: Clarendon/Oxford University Press, 2000.
• Rescher, Nicholas. Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective. Pittsburgh, PA: University of Pittsburgh Press, 2001a.
• Rescher, Nicholas. Philosophical Reasoning: A Study in the Methodology of Philosophizing. Malden, MA: Blackwell, 2001b.
• Rescher, Nicholas. Epistemology: An Introduction to the Theory of Knowledge. Albany, NY: State University of New York Press, 2003.
• Rosemont, Henry, Jr. Rationality and Religious Experience: The Continuing Relevance of the World’s Spiritual Traditions. Chicago, IL: Open Court, 2001.
• Rossi, Elisa. Shen: Psycho-Emotional Aspects of Chinese Medicine. Edinburgh: Churchill Livingstone, 2007.
• Salguero, C. Pierce. Traditional Thai Medicine: Buddhism, Animism, Ayurveda. Prescott, AZ: Hohm Press, 2007.
• Scheid, Volker. Chinese Medicine in Contemporary China: Plurality and Synthesis. Durham, NC: Duke University Press, 2002.
• Scheid, Volker. Currents of Tradition in Chinese Medicine, 1626-2006. Seattle, WA: Eastland Press, 2007.
• Sivin, Nathan. Traditional Medicine in Contemporary China. Ann Arbor, MI: Center of Chinese Studies, University of Michigan, 1987.
• Sivin, Nathan. “Science and Medicine in Chinese History,” 1990. Available: http://ccat.sas.upenn.edu/~nsivin/writ.html.
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• Stanley, Jason and Timothy Williamson. “Knowing How,” Journal of Philosophy, 98.8 (2001): 1-40.
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• Thagard, Paul. “What is a Medical Theory?” in Ray Paton and Laura A. McNamara, eds. Multidisciplinary Approaches to Medicine, Vol. 3. Amsterdam: Elsevier B.V., 2006: 47-62. Available at Professor’s Thagard’s articles page for “Science and Medicine Articles:” http://cogsci.uwaterloo.ca/Articles/Pages/Disease.html
• Turner, Leigh. “Bioethics in a Multicultural World: Medicine and Morality in Pluralistic Settings,” Health Care Analysis, Vol. II, No. 2, June 2003: 99-117.
• Unschuld, Paul U. Nan-Ching: The Classic of Difficult Issues. Berkeley, CA: University of  California Press, 1986.
• Unschuld, Paul U. Medicine in China: A History of Ideas. Berkeley, CA: University of California Press, 1988.
• Wallace, B. Alan. Choosing Reality: A Buddhist View of Physics and Mind. Ithaca, NY: Snow Lion, 1996.
• Walton, Douglas. Appeal to Expert Opinion: Arguments from Authority. University Park, PA: Pennsylvania State University Press, 1997.
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• Wong, David. “Comparative Philosophy: Chinese and Western,” The Stanford Encyclopedia of Philosophy (Fall 2005 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2005/entries/comparphil-chiwes/. 
• Wujastyk, Dominik. The Roots of Ayurveda. London: Penguin, 2003.
• Zhang, Yanhua. Transforming Emotions with Chinese Medicine: An Ethnographic Account from Contemporary China. Albany, NY: State University of New York Press, 2007.
• Ziman, John. Real Science: What It Is, What It Means. Cambridge, UK: Cambridge University Press, 2000.
• Zysk, Kenneth G. Religious Medicine: The History and Evolution of Indian Medicine. New Brunswick, NJ: Transaction, 1993.
• Zysk, Kenneth G. Asceticism and Healing in Ancient India: Medicine in the Buddhist Monastery. Delhi: Motilal Banarsidass, 1998.
• Zysk, Kenneth G. Medicine in the Veda: Religious Healing in the Veda. Delhi: Motilal Banarsidass, 2nd ed., 1998.

The War on the Indigent with the Sword & Shield of Neoliberal Commodification

At the New APPS blog, John Protevi recalls

“a Dr. Who episode in which the cost of burying one’s relatives triggers a debt cycle leading to slavery. A parable of the Thatcherite takeover of the UK, it points to the Autonomia spin on the notion of ‘real subsumption,’ that is, the commodification of every social relation, even mourning. Which brings us to Monday’s Baton Rouge Advocate story, ‘East Baton Rouge Parish Coroner's Office to charge families for cremated remains.’

Families that turn over the bodies of loved ones to the East Baton Rouge Parish coroner for a pauper’s cremation will have to pay if they want the ashes returned. Coroner Dr. Beau Clark said his office will begin enforcing state laws that kick in when family members agree to a pauper’s burial, which means they sign over the rights of the body to the state because they cannot afford or refuse to pay funeral costs, Clark said....

Clark said he decided to begin enforcing the law after funeral homes approached him with a concern that people were choosing what they thought was a free cremation over paying a funeral home when families could afford funeral or cremation costs.

Three steps remain, but they won’t be long in coming: 1) billing the families whether they claim the ashes or not, 2) jailing those who can’t pay, and 3) placing them in Louisiana’s thriving private prison industry.”

This called to mind a sociological parallel courtesy of our criminal justice system, as I noted in my comment to John’s post:

The country’s social ethos under the regnant neoliberal ideology has darkened considerably, particularly from the perspective of someone like myself, who came of age during the (somewhat successful although it ended prematurely) “War on Poverty.” In many quarters a war on the indigent, especially the indigent accused or convicted of crimes is being conducted with the sword and shield of neoliberal commodification. I was astounded to learn recently that

“According to a report by the Brennan Center for Justice, states are increasingly imposing fees on indigent criminal defendants, including fees for the public defender. Pro Publica analyzed the report and noted that of the 15 states with the largest prison populations, 13 have provisions to charge defendants fees for exercising their right to counsel. In some of the states, the laws include mandates that specifically bar the court from waiving the fees, even for the poorest of defendants. And in Florida and Ohio, defendants must pay even if they are acquitted of the charges or have them dropped.”

For those not familiar with the sundry problems that continue to plague the constitutional right to counsel in our criminal justice system:

“The problem is that the fees arguably discourage individuals from exercising their constitutional right to an attorney. When defendants don’t exercise their right to public defenders, they frequently obtain the worst result possible. That’s the nature of an adversarial system. In additional, unrepresented defendants lead to wrongful convictions, over-incarceration and huge burdens on the courts, according to the report.”

This commodification seeps into every nook and cranny of the criminal justice system such that one is structurally predisposed to kick ‘em (alas, in not a few jurisdictions, literally and figuratively) while they’re down, as

“some of the fees don’t even end with the conclusion of the trial. Some states charge incarceration fees, prosecution reimbursement fees, probation fees, parole fees, drug testing fees. Naturally, most of the defendants don’t have the money to pay for any of this, and the fees continue to build over time. Making matters even more complex, in many states, when defendants don’t pay off their debts, they lose privileges, like voting and driving.”