ReligiousLeftLaw.com

Tis Late

A friend sent me the poem at this link thinking I would like it. Go here.

I do.

New Blog Member

I would like to welcome Charles Reid to Religious Left Law. We are fortunate to have him.

File under "Interesting Developments"

It is reported in the NYT this morning (here) that "Republicans Sign Brief in Support of Gay Marriage".  One of those Republicans is former Utah governor--and also former, and possibly future, presidential candidate--Jon Huntsman.  In an article published just last week in The American Conservative (here), Governor Huntsman wrote: 

"While serving as governor of Utah, I pushed for civil unions and expanded reciprocal benefits for gay citizens. I did so not because of political pressure—indeed, at the time 70 percent of Utahns were opposed—but because as governor my role was to work for everybody, even those who didn’t have access to a powerful lobby. Civil unions, I believed, were a practical step that would bring all citizens more fully into the fabric of a state they already were—and always had been—a part of.

That was four years ago. Today we have an opportunity to do more: conservatives should start to lead again and push their states to join the nine others that allow all their citizens to marry. I’ve been married for 29 years. My marriage has been the greatest joy of my life. There is nothing conservative about denying other Americans the ability to forge that same relationship with the person they love.

All Americans should be treated equally by the law, whether they marry in a church, another religious institution, or a town hall. This does not mean that any religious group would be forced by the state to recognize relationships that run counter to their conscience. Civil equality is compatible with, and indeed promotes, freedom of conscience.

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans."

First E.J. Dionne, Now Elmore Leonard: A Nun for Pope!

Elmore Leonard weighs in here.  (E.J. Dionne, here.)

The best choice for pope? A nun.

So writes E.J. Dionne, columnist for The Washington Post who is himself Catholic, here.

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)

My Love/Hate Relationship with Ronald Dworkin's Scholarship

Ronald Dworkin died last Thursday. I met him twice, but I doubt he could have picked me out of a lineup. Nonetheless, he had an enormous influence on my scholarship. Simply put, much of my scholarship has been directed against his. I do not mean this as a cheap shot. Dworkin was a scholarly giant writing squarely in the Kantian tradition, but I rebel against that tradition, or more precisely, a significant part of it.

It was Dworkin who first drew me into an interest in political theory. He wrote an essay on liberalism many decades ago in which he argued that liberalism was committed to the view that the state should be neutral about the good life. My reaction was that this was not the liberalism I knew and appreciated. The state had never been neutral about the good life, never would be, and never should be. Even more important Dworkin’s thesis (which was qualified and refined over the years) was set in a larger theory claiming that moral and political questions could all be resolved by reference to fresh deductions from a small set of premises. My reaction has been that free speech, for example, clashes with too many other values and interests to hope or expect that the right answer to these problems could ever be found by deductions from a small set of premises. To be fair, Dworkin conceded that a right like freedom of speech could be limited if it conflicted with another right, but the criteria for determining the content of a right were too elusive for my tastes. Over the years, I realized that I had a temperamental objection to grand theory. It was not just that I thought grand theory was pragmatically unrealistic. I did not want grand theory to succeed. It was too simple; too pat; and insufficiently appreciated the romance and mystery of moral life.

At the same time, I realized that those who write in the tradition of grand theory have reasons of temperament to want it to succeed that go beyond pragmatic considerations, and I wrote about that (The First Amendment, Democracy, and Romance, Ch. 4) after giving a talk at NYU, the home of grand theory either in the realm of political theory like Dworkin or in the realm of ACLU free speech liberalism (NYU was the ACLU’s most important law school home many decades ago). My talk was not well developed, but the defensive reaction I received even from ordinarily gentle folk who fiercely resisted my psychological speculation showed me I was on to something. (In fairness, Larry Sager was enormously helpful).

If I disagreed with Dworkin on much and am grateful that he inspired me to fight against him, I agreed with much as well. One does not have to be a devotee of grand theory to recognize the importance of equality, dignity, and autonomy, and Dworkin championed all three in eloquent and thoughtful ways. Similarly there are many areas where instrumental arguments are out of place, as Dworkin so frequently argued. Even more important, Dworkin brilliantly argued that law is not just a set of rules, but policy arguments and moral principles are a part of law. Indeed, as I interpret him, Dworkin claimed that there was always a right answer to legal, moral, and political problems. This was part of his theory that I most appreciate: moral skepticism is not an appropriate foundation for liberalism; it is an incoherent and psychopathic basis for law and politics.  I think this is an area where Mill and Dworkin come together though Mill laid more stress on our fallibility in determining what the right answer might be.

Dworkin was an eloquent champion of civil liberties and a public intellectual. He was an important moral, political, and legal theorist. He is gone. But he has left a body of work that will be influential for a long time to come.

"A Reply to My Critics" -- Chuck Reid

[University of St. Thomas law prof Chuck Reid asked me to post this statement at Mirror of Justice, which I was happy to do.  I thought that because some RLL readers will be interested in the statement, I should post it here too.]

          In my abortion columns written over the last five months, I have made it clear that I do not disagree in principle with the propositions that life begins at conception and that it is deserving of legal protection.  My quarrels have been, rather, with the political strategies of the pro-life movement, as it has evolved over the last four decades.

          Many readers have noticed this.  A commenter on one my Huffington Post columns observed (I paraphrase):  Reid's proposal to cooperate on a shared agenda with the left to reduce the rate of abortion is probably the only way forward for the pro-life movement.  But this observer, who acknowledged that he/she was pro-choice, continued by noting that the pro-life movement would never follow.  And then there were the editors at the Italian newspaper, La Stampa, who profiled my work in an article entitled "Changing Strategy on the Culture of Life."  The editors certainly understood my work to speak to strategy, not principle.  So, let's be clear upfront, my concern is centered in the world of prudential judgment, it is a matter of how to succeed given today's political realities.  It is not an argument over first principles.  As I have made very clear, the pro-life movement should be about saving lives in the here and now.

          I have known women who have experienced the tragedy of abortion.  There was the Jewish woman who received the grim news early in her pregnancy that her child was anacephalic -- developing without a head.  The child could be expected to survive no more than a few hours post partum, if that.  She was devastated and looked to the teachings of her faith which made it clear to her lights that abortion was recommended in such extreme cases to limit needless suffering.  And then there were the Catholic women, several of them, I became acquainted with during my service as a matrimonial judge.  None of them wanted to have an abortion.  But they were lonely, desperate, their spirits crushed by boyfriends and families who abandoned them.  Alone, lacking financial and emotional resources, they chose a solution for which they were truly sorry but which seemed inevitable at the time.

          These vivid life experiences have taught me that the common denominator to the choice to have an abortion is desperation.  I have yet to meet a woman who chose abortion to satisfy some desire for greater material resources.  I am sure there are some who decide that they will never get that Mercedes Benz if they have a hungry mouth to feed, but those women are few in number.  Desperation, hopelessness, a fear of being left alone in the world without means of assuming the responsibilities of childcare -- these are the great causes of abortion.  Individual pro-lifers, and organizations such as pro-life pregnancy centers to which individuals devote their time, have recognized this, to their great credit.  But the political strategy of the pro-life movement has failed to recognize it, and indeed increasingly stands in the way of it.

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.

A Genuine Plurality of Discourse: Speaking to Steve Shiffrin’s Lament and Concerns

 

In his latest post, Steve Shiffrin concludes as follows:

Theological ethics in a variety of faith traditions have been developed in communities of discourse that go back many centuries. Why wouldn’t they have something interesting to say about a broad range of legal, political, and ethical topics? There may be good historical explanations for why theologians are absent from reading lists in law, politics, and ethics, but I do not think there are good reasons for their exclusion.

I wholeheartedly agree, and attempt here to account in some measure for why these and other “communities of discourse” have often been systematically excluded in this fashion.

I think this is to some extent the reflection of a professional division of labor that has become ossified owing to institutional inertia, increased specialization, and academic bias, among other things. My late teacher and friend, Ninian Smart, used to complain (both in private and in print) that Rawlsian Liberalism (in particular, A Theory of Justice, 1971, revised ed., 1999) was effectively articulated in a “worldview vacuum” because it was deliberately and abstractly crafted so as to be “beyond” the messy worldviews that people more or less identify with or subscribe to “on the ground” and outside the seminar room. This is ironic because Rawls was ostensibly concerned with “public reasoning” and arguments by and for citizens of a democratic polity (granting that politicians, government officials, and the judicial branch are held to more rigorous and somewhat different standards although the rhetoric of such reasoning should be easily translatable into a discourse accessible to the masses), but short of clearly demonstrating how a motley of “actually existing worldviews” could arrive at or endorse the fundamental (axiomatic) assumptions and basic premises of his ideal position and principles of justice, it is structurally or rhetorically unable to make a prima facie appeal to that public apart from those precious few professional ethicists and philosophers adept at such forms of speculative and experimental reasoning. Part of the problem here is simply rhetorical: Plato could reason in a fairly sophisticated and abstract manner but the vehicle of his philosophy took a dialogue form that made it accessible to citizens (often the young men) of the agora, a rhetorical mode far different (because it is designed for citizens as citizens) from that adopted by modern professionals under constraints to publish or perish. Mind you, this complaint might equally apply to not a few theologians today, but much of the problem is professional gatekeeping that subscribes to and enforces analytic standards and criteria for argumentative discourse that are not employed or at least not necessary outside these limited professional domains: the regnant assumption is that one is typically writing for and to philosophers (or perhaps would-be philosophers). To be sure, some of these philosophers will rhetorically “dumb-down” their discourse to speak to various publics, but relatively few professional philosophers appear able or even willing to do this.

Back to Ninian:

“Scientific humanism and Marxism are often in living contact and conflict with traditionally religious belief-systems. Rivals should be treated together. If they are not, then we are taking steps to entrench some determinate viewpoint into our educational system, and genuine pluralism is in this way eroded. Sometimes indeed we have arrived at the regrettable state of affairs in which the philosophy department may regard itself as teaching rationality and scientific humanism in ideological contrast to the crypto-religious teachings purveyed by a religion department. It is a regrettable state of affairs because it entrenches selection of personnel by reference to the acceptability of their beliefs, but it is regrettable also because it is not an honest situation. If the institution of religion or of philosophy means the imposition upon the university of a worldview not derived essentially from the nature of the university, we are back with at least a mild case of discrimination against outsiders.

But at a deeper level, the false division between religion and philosophy (or rather an aspect of philosophy) is bad, though normal because it reflects one of a number of absurdities in the way in which we carve up the academic world. A student who wishes to study Sartre probably has to go to French Studies [this is not as true today as when Ninian wrote this]; Mao, and it is Chinese Studies; Vivekananda or Tillich, to Religious Studies; Wittgenstein, Kant, or Chomsky, to Philosophy; Marx to Political Science; the worldview of the Masai, to Anthropology; and Theodore Herzl, to Jewish Studies. Yet all these people and ideas are expressing worldviews—overlapping, sometimes in conflict, often presenting themselves for choice. It does not make sense that academic studies are in this respect so fragmented. To some extent, the problem is that we have evolved differing canonical traditions: we have defined the past in terms of modern philosophy, for instance, and so define a canonical line as genuine philosophers. Often some thinkers may be banished: for a long time in Anglo-Saxon philosophy (predominantly ordinary-language and analytic) it was not possible to discuss Heidegger or Sartre: and to a great degree Indian and Chinese philosophy are also outcaste.” From his book, Religion and the Western Mind (Albany, NY: State University of NewYork Press, 1987): 9-10.

As for claim of the final clause of the last sentence above, things are changing, as the philosopher Jay Garfield explains in a recent interview:

Question: “You say that at the time of moving to Buddhist philosophy many of the philosophers and cognitive scientists working in philosophy of mind and so forth were dubious about the merits of your doing this. Has this attitude changed over the years so that it is no longer seen as an aberration, or is it still a problem?”

Garfield: “It has. I have been gratified to see how many Western philosophers now at least take non-Western philosophy, including Buddhist philosophy, seriously. An increasing number are reading and discussing non-Western philosophy; the APA now often includes a few panels on non-Western philosophy – again, including Buddhist philosophy – on its program; an increasing number of departments seek philosophers who can teach non-Western philosophy in their departments, or cross-list courses in Religion departments on Buddhist or other non-Western philosophical traditions. Just a few months ago, Christian Coseru, Evan Thompson and I directed an NEH summer institute on ‘Consciousness in a Cross-Cultural Perspective’ in which we integrated Buddhist and Western perspectives. That institute attracted as participants and as faculty a number of philosophers whose work is almost entirely in the Western tradition who were happy to take seriously Buddhist material. So there has been a lot of progress. But there is also a long way to go. People in our profession are still happy to treat Western philosophy as the ‘core’ of the discipline, and as the umarked case. So, for instance, a course that addresses only classical Greek philosophy can be comfortably titled ‘Ancient Philosophy,’ not ‘Ancient Western Philosophy,’ and a course in metaphysics can be counted on to ignore all non-Western metaphysics. A course in Indian philosophy is not another course in the history of PHILOSOPHY, but is part of the non-Western curriculum. And many of the major journals in our field will not even seriously consider submissions that address non-Western literature. Until the literature, curriculum, professional meetings and mode of engagement with the literature is as diverse as the world of philosophy itself, there is a lot of work to do. And that work is a matter of both intellectual and moral imperative. It is simply irrational to ignore most of world philosophy in the pursuit of truth, and immoral to relegate any literature not written by Europeans as somehow beneath our dignity to read.” [emphasis added]

Some readers may recall that I began to address some of these topics (not Steve’s specific concerns but no less related to them) in a very preliminary fashion here and here.

The Contraception Mandate and Religious Liberty

INTERVIEW February 1, 2013

On Feb. 1, 2013, the Department of Health and Human Services (HHS) proposed new rules that would exempt certain religious organizations, including houses of worship, schools and hospitals, from a new mandate to offer free contraception services to women employees. The new regulations would instead require the nonprofits’ health-insurance providers to offer and pay for contraceptive services. The new proposal is the latest step in a controversy that first arose in 2010, with the enactment of the Patient Protection and Affordable Care Act. The contraception mandate has been the subject of much debate and the object of many lawsuits (read more about public opinion on the birth control insurance mandate). To help explain what today’s announcement might mean for the debate, the Pew Forum asked Professors Ira C. Lupu and Robert Tuttle of The George Washington University Law School to discuss the new rules and the possible outcome of the legal challenges to them.

[Here is the interview.]

Theology and the University: With Notes on Capitalism

American universities are more European than Europe when it comes to religion. They are generally secular to the core. American academics typically believe that science shows that religion is silly superstition – it certainly has nothing to contribute to law and politics.

I leave aside the extent to which major religious faiths accept the conclusions of modern science. It seems to me that universities are filled with ignorance about the intellectual contributions of theologians to various issues in ethics, politics, and law. That is one of the reasons I assign Karen Lebacqz’s book Six Theories of Justice in my seminar on Constitutional Law and Political Theory.

The book has an accessible summary of the views of Rawls and Nozick together with an account of the critical literature. And, for readers unacquainted with their writings, an account of this character is not easy to find. More important, the book brings theologians into serious dialogue with political theorists. I particularly enjoy discussing the chapters on the Catholic Bishop’s account of political economy and the views of  Reinhold Neibuhr (and wish I had time to discuss the chapter on Jose Porfirio Miranda, a liberation theologian).

The Bishops’ critique of unrestrained capitalism and strong views of social justice come as a surprise to students who associate the Bishops with their views on sexual issues and women. They argued against the inegalitarian character of the capitalist system, for a right to material welfare, and for the right to a job at the same time they inveighed against hedonism and materialism. The Bishops provide an obvious contrast to the libertarianism of Nozick. And they place even greater emphasis on economic justice and political participation than Rawls.

Niebuhr also issued criticisms of capitalism that were similar to the Bishops. And he also criticizes consumerism. As John Patrick Diggins wrote in his excellent little book, Why Niebuhr Now?, Niebuhr said that “Love of possessions is a distraction that makes love and obedience to God impossible.”  He deplored the factory conditions prompted by the structure of capitalism. He laid some of the blame at the feet of the “complacent” middle class and the Church. As Niebuhr put it, “A National Thanksgiving if it is meant to express gratitude for material bounty becomes increasingly a pharisaic rite.”

But his focus on sin collided sharply with the perspective of the Bishops. To be sure, the idea of sin is hardly foreign to Catholic thought. But Catholic thought for a long time focused on sins, not sin. It sought to categorize types of sin and the appropriate penance that should be imposed in confession. Moreover, Catholics understood sin as separation from God. Nonetheless, Catholic thought entertains a sunnier view of human nature than Niebuhr. Catholic thought is animated by conceptions of the common good, of shared interest, of consensus possibilities. The Bishops thought that the interests of labor and capital could be harmonized. Instead, Niebuhr saw politics as a clash of usually irresolvable selfish interests. For Niebuhr, individuals are permeated with sin: making themselves the center of the universe, animated by pride, and thoroughly self-deceived. Groups are even worse. Americans fight wars for material reasons while convincing themselves that they fight them to promote democracy and to help the very people whose lives they make miserable.

From Niebuhr’s perspective, James Madison was on the right track in trying to balance interests against interest, but I doubt he would have thought that leaders free of those interests would make judgments in the common good or that there is a common good to be found.

In the end, I think the criticism of capitalism by the Bishops is too restrained and the view of harmonizing interests too precious (though it may have been a politically calculated move for them to put their heads in the sand). At the same time, I think Niebuhr is excessively cynical though he is far more right than most of us would like to admit. I do know that these theological writings prompt good discussions in connection with Rawls and Nozick. Nor should it be surprising. Theological ethics in a variety of faith traditions have been developed in communities of discourse that go back many centuries. Why wouldn’t they have something interesting to say about a broad range of legal, political, and ethical topics? There may be good historical explanations for why theologians are absent from reading lists in law, politics, and ethics, but I do not think there are good reasons for their exclusion.

"The Pro-Life Movement at a Crossroads"

University of St. Thomas law prof Chuck Reid on where to from here for the pro-life movement.  An interesting piece, here.

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.