Sunday, September 30, 2007

"The Scientific Concept of Development," The Rule of Law and the Proposed Amendments to the Constitution of the Chinese Communist Party

The public organ of the Chinese Communist Party recently announced what had been rumored for some time--proposed amendments to the Chinese Communist Party Constitution. Communist Party of China to Amend Part Constitution, People's Daily Online, Sept. 17, 2007. The amendment is expected to be adopted at the 17th National Congress scheduled on October 15, 2007 "The amendment should be made "under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thoughts of 'Three Represents,' and to reflect the major strategic thoughts the CPC Central Committee has set forth since the 16th CPC national congress was held (in 2002), such as the scientific concept of development," said the meeting." Communist Party of China to Amend Part Constitution, , supra.

These amendments will formalize Hu Jintao's stamp on Party governance, in a manner similar to that of his predecessor and the incorporation of the "three represents" (sange daibiao) theory into the normative structure of Communist Party governance. See Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16(1) Journal of Transnational Law & Contemporary Problems 29 (2006).

How does "scientific development" align with the current state of the development of the Chinese Communist Party line?

Saturday, September 29, 2007

Funny Games: Norms and Decadence in The Western Intellectual Establishment

It is rare to come across a robust admission of the deep decadence of the West, especially of the variety that has engrossed a portion of its intellectual elites in its modern form for over half a century. But in a rare convergence of honesty, low and high culture among the Euro-American intelligentsia, it is possible to appreciate both the exquisite nature, and the enormity, of this decadence in somewhat disturbing but fascinating detail.

 I am referring to an interview with Michael Haneke, the director of the recently released movie--Funny Games--a film about a white, middle class and vaguely mainstream religious origin family (the cultural ideal), visited by two well dressed young men appearing for all intents and purposes to belong to the same socio-cultural circle. "Over the course of the next hour [of the movie] these two polite, articulate strangers force the family to take part in progressively more sadistic contests, periodically stepping outside the film's action to speak to the viewer directly." John Wray, Minister of Fear, The New York Times Magazine (Sept. 23, 2007) at 44, 46. The movie ends mostly badly for the model family and for the perpetrators, and for the audience as well. Everybody loses when cultural structures provide no satisfactory support for action, or guides to conduct

Friday, September 28, 2007

Structural Changes at the IMF: More Voices Same Choices

The International Monetary Fund continues to be the resting place for European politicians waiting for better times. France found it necessary to place an important member of the new opposition party some place safe. And what better place than the International Monetary Fund. This is especially the case with the successful candidate--Dominique Strauss Kahn, the former French Socialist Finance Minister and the runner up for Socialist Party leader in France , who thus "won" (at the IMF) by losing to Segolene Royal to be the Socialist party's candidate in the recent French presidential election. Indeed, one of Mr. Strauss Kahn's principal backers was none other than "French President Nicolas Sarkozy [who] had supported Mr Strauss-Kahn's leadership bid and hailed the nomination as a 'great victory for French diplomacy.'" Frenchman is Named New IMF Chief, BBC News Online, Sept. 28, 2007.

But this time the Europeans may have chosen well.

Aristotle's Natural Slaves and African Slavery in the United States

Europeans spent much time seeking both moral and rational justifications for Black African slavery. For the Spanish, in the early years of the American colonization, both Catholic theology and Greek philosophy provided a suitable basis. Proponents of Black African slavery looked to Aristotle’s Politics for a reasoned justification of slavery. Aristotle, Politics (Benjamin Jowett, trans., 350 BCE) ( Aristotle envisioned a natural order based on vertical relationships. With respect to slavery, he posited that “There is a slave or slavery by law as well as by nature.” Id., at Bk I Part VI. Legal slavery was disputed even in Aristotle’s day. See Id. But natural slavery was something else. It could have its origin in the natural character of people (Hellenes versus barbarians) or inferior versus superior person.

For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule. . . . Where then there is such a difference as that between soul and body, or between men and animals (as in the case of those whose business is to use their body, and who can do nothing better), the lower sort are by nature slaves, and it is better for them as for all inferiors that they should be under the rule of a master. For he who can be, and therefore is, another's and he who participates in rational principle enough to apprehend, but not to have, such a principle, is a slave by nature.

Id., at Bk. I, Part V.

It was a simple matter, thousands of years later, to extract from these passages of Aristotle a philosophical and rational basis for both the natural enslavement of Black Africans, and sometimes Indians.

Saturday, September 22, 2007

Fujimori in Perú: The Rule of Law and Trials of Fallen Leaders

A recent Argentine newspaper article described the extradition of Alberto Fujimori, former President of Perú back to his homeland after a long period of exile in Japan following the collapse of his Presidency amidst charges of corruption and human right abuses. Fujimoi regresó a Perú, La Nación, (Argentina) Sept. 21, 2007. The Peruvian state has promised the world (and its people) a trail in which the state will seek expiation of its sins in ridding the nation of the horrible violence of the period of the revolt by the Sendero Luminoso (Shining Path) guerrillas, whose European web site may be accessed here. I have suggested the political realities behind the urge to bring the veil of rule of law notions into the arena of criminal trials in which highly placed individuals are chosen to bear the responsibility for the acts of state that in hindsight suggest conduct at variance with some interpretations of international political behavior standards but for which collective punishment would appear to be imprudent.

In the context of the trial and execution of Sadam Hussein of Iraq, I suggested:

I don’t write about the trial or the verdict, other than to say that Saddam Hussein has joined a long list of monarchs condemned to death after public proceedings in the form of a trial—Charles I of England, Louis XVI of France, and the defeated leaders of Nazi Germany and militarist Japan, and the political enemies of Marxist Leninist Regimes (especially under Stalin in the 1930s and Mao Zedong in the 1960s). In each case, the trails were meant as theatre. They served to discredit the ancien regime and legitimate the process of regime change. They also served to strip authority from the body of the representative of the prior political order. Then, with that representative reduced to mere man, the man—and not the state—is condemned as mere criminal; he suffers the same penalties as other bandits and outlaws. The state is preserved and punishment for its sins inflicted on the body of its proxy. The state is now reborn.
On the Conviction of Saddam Hussein, Law at the End of the Day, Nov. 6, 2006. This reductionism--the Peruvian government assured the Chileans holding the ex President that Fujimori will be tried as an ordinary criminal in accordance with the rule of law applicable to actions tied to his own conduct, was siad to have been decivive in convincing th Chileans to permit the extradition of Fujimori to Perú. See Alberto Fujimori: "Me voy a Perú, pero con un blindaje legal," El Mercurio (Santiago de Chile) Sept. 22, 2007 ( Gobierno peruano aseguró que su estrategia de no politizar este caso fue decisiva para conseguir que se aprobara la extradición). But the Peruvian people seem to understand another reality. Maria Pastora Sandoval, Blogs peruanos celebran extradición de Fujimori, El Mercurio Online, Sept. 21, 2007 (reporting on sentiments that Fujimori returns to face punishment for the crimes committed during his administration while the world watches).

Wednesday, September 19, 2007

The Other Sectarian War in Iraq: Iraqi Christians, the Vatican, American "Soft" Islam and a Future of Fractured Constitutionalism

The BBC reported recently that Benedict XVI refused to receive the American Secretary of State this past August. David Wiley, Pope 'Refused Meeting With Rice,' BBC News Online, Sept. 19, 2007. The report suggested two reasons for the snub. First was payback--apparently the Papal Ambassador had been badly treated by the Bush Administration early in the current Iraq War, and this was viewed as a nice way of paying back the slight. A small payback in any case since the Pope has been careful to meet with President Bush in June, 2007 to hear the American Administration's case for continued activity in Iraq. For a video report click here.
Secondly, the US has responded in a manner considered unacceptable at the Vatican to the protection of the rights of Iraqi Christians under the new Iraqi constitution. The Bush administration has told the Vatican that as coalition forces have not succeeded in securing the whole territory of Iraq, they are unable to protect non-Muslims.
David Wiley, supra. This mirrors recent criticism by the Archbishop of Canterbury, who suggested in 2006 that "there was "no doubt" that life for Christians in Iraq had become more difficult since the invasion." Archbishop Attacks Iraq Strategy, BBC News Online, Dec. 23, 2006.

Monday, September 17, 2007

China and the New (Old) Citizenship: Overseas Chinese, "Soft" Citizenship and the Homeland

The issue of migration and identity has been a troublesome one for some time. In the West, there is a great tension between a tendency to want to open borders to those people seeking to enter to improve their lives and join the host community and an equally strong tendency to want to close borders to migrants who come for the money and have no intention of assimilating to the host culture. Tied to the issue of migration, then, is the question of loyalty to host and home state. In a world in which ethnos and nationality converge, some argue the difficulty migrants face in seeking to change nationality. Ethnic citizenship and ethnic nationality portends poorly for individuals seeking to find a permanent home in a host state. The current trend, at least until the early 21st century, appears to look suspiciously on ethnic states, to suggest a strict division between culture/ethnicity and citizenship, and between political loyalty and socio-cultural assimilation. But all bets are off on this model in the aftermath of the breakup of Yugoslavia in the 1990s and the imminent breakup of Iraq in the early 21st century. Those places suggest a reemergence of ethnos as a basis of nationality. The ethnic cleansing and mono ethnic state not tolerated when attempted by Serbia in the early 1990s, appears to be a model for places like Kosovo and Iraq, if only de facto.

Now the Chinese have weighed in on this issue in a very interesting way. China is an interesting case. A hybrid of sorts that may provide a window on the relationship between ethnicity and citizenship n the coming century. The Chinese Constitution declares the People's Republic to be a multi ethnic state.

Article 4. All nationalities in the People's Republic of China are equal. The state protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity and mutual assistance among all of China's nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession are prohibited. . . . All the national autonomous areas are inalienable parts of the People's Republic of China. The people of all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and customs.
At the same time, there are elements of ethnos in the Chinese constitutional order.
Article 50. The People's Republic of China protects the legitimate rights and interests of Chinese nationals residing abroad and protects the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad.

The meaning of this provision has not been clear. But recent reports suggest a broad applicati0on of the principles underlying this provision. Like the Irish in the 1990s, China is now seeking the return hom eof its most successful emigres.

The People's Daily has recently reported on a suggestion from Jia Qinglin, a member of the higher reaches of Chinese Communist Party circles, that implies that migration should not affect ultimate political loyalty of Chinese emigrants to their home state--at least among "overseas" Chinese. See China's Top Political Advisor Voices Five-Point Hope for Overseas Chinese, People's Daily Online (Sept. 16, 2007). The suggestion was made overseas--in Japan--and was targetted at the elite of China's emigré communities abroad. "China's top political advisor Jia Qinglin voiced in Kobe, Japan on Saturday his five-point hope for overseas Chinese when addressing the opening ceremony of the 9th World Chinese Entrepreneurs Convention (WCEC)." China's Top Political Advisor, supra.

Essentially, Jia Qinglin made a pitch to Chinese emigrés to more positively participate in China's economic development by serving Chinese interests abroad.
the first is that overseas Chinese can live harmoniously with local people and actively push forward the development and progress of the country they live in.

The second is that China welcomes overseas Chinese, with their own advantages, to take part in China's modernization in various forms.

The third is that overseas Chinese can be united closely in opposing "Taiwan independence" secessionist activities in any form, and continuously promote personnel, economic and cultural exchanges across the Straits so as to push for an early realization of China's reunification.

The fourth is that overseas Chinese, while learning from other countries, can carry forward and promote Chinese culture.

The fifth is that overseas Chinese can help promote people-to- people friendship between China and other countries in the world.
China's Top Political Advisor, supra. The venue for this exposition was carefully chosen. It was made at the Japanese meeting of the 9th World Chinese Entrepreneurs Conference. " The WCEC was first held 1991 in Singapore. Since then, it has been held in Hong Kong, China, Bangkok, Thailand, Vancouver, Canada, Melbourne, Australia, Nanjing, China, Kuala Lumpur, Malaysia, Seoul, Republic of Korea, promoting local as well as regional and national economy of the host countries." Backgrounder: World Chinese Entrepreneurs Convention (WCEC), People's Daily Online, Sept. 15, 2007. The WCEC described the conference in these terms: "Ethnic Chinese businessmen from all over the world(Executives of Chinese ancestry) got together and they discussed about establishing economic networks and focused on the revitalization of Ethnic Chinese and Decent Chinese economics; Whose purpose is that contribute to economic development for the host country." The 9th World Chinese Entrepreneurs Conference, About the 9th World Chinese Entrepreneurs Conference.

The language of the five point plan was thus meant to be clearly economic--China seeks to more pro-actively harness the great wealth and networks of overseas Chinese communities. It was also sensitive to the realities of the precariousness of Chinese settlement in may countries in Asia, where they are still viewed as unassimilable and as neo-colonialist outside exploiters. But that, itself, is telling of the difficulties of getting away from ethnos as a touchstone of belonging to political communities (irrespective of assimilation though complicating its effects--even outside the West). On the Chinses disaspora in Malaysia, a particularly sensitive spot in this respect, see Jonathan Kent, Chinese Disaspora: Malaysia, BBC News Online, March 3, 2005 (describing the changes in the Malay Chinese community since the anti Chinese riots of 1969. "Most visitors to Malaysia are struck by how successfully the country's Chinese population has preserved its identity - in contrast to Thailand, for instance, which has operated a policy of assimilation. "We're like a little backwater of Chinese culture as it was in China 80 years ago," said heritage architect Jimmy Lim." Id.).

It also mirrors the fluidity of citizenship that finds expression in its Nationality Law. See Nationality Law of the People's Republic of China (Article 2 The People's Republic of China is a unitary multinational state; persons belonging to any of the nationalities in China shall have Chinese nationality; Article 9 Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.). That fluidity of meaning has marked the last century of Chinese history, and is only now becoming more conventional in a globally understood sense. See the essays in Changing Meanings of Citizenship in China (Merle Goldman, Elizabeth J. Perry, eds., Cambridge: Harvard University Press, 2002).

But there is a cultural and political element as well. The call to resist Taiwanese independence is no surprise. Chinese officials have been seeking every means to counter the increasingly vocal campaign by Taiwan to seek to regularize its status outside of China. More interesting is the call to learn from other countries, sometimes the country of citizenship, and "carry forward and promote Chinese culture." Citizenship does not seem to affect either the cultural foundations of the individual, or an obligation to promote the interests of the home state through culture. Chinese citizens of foreign states appear bound to learn what they can from their foreign hosts and promote Chinese culture in that foreign land. To the extent these foreign nationals living abroad are family members of Chinese nationals, the Chinese state has an obligation to protect their legitimate rights and interests. Chinese Constitution art. 50. Those interests are cultural, but principally economic.

China has been increasingly projecting power abroad. It has done so in traditional ways--through extensive military exercises and entanglements, through aggressive investments abroad and the locking up of the natural resources of other states (especially in Africa and South America), through a more active diplomacy. And now, in a most interesting way, through the reconstitution of "soft" citizenship based on ethnos, within a formal construct of citizenship based on residence and application. Ethnic Chinese may become formal citizens of other places, but they remain "Chinese", and to that extent owe a soft allegiance to the source of culture and ethnic identity. In return, the state owes to them an obligation to protect their interests as "soft" Chinese. That is the understanding that
Jia Qinglin means to elaborate. That is the understanding that Malay Chinese understand as they look to a reinvigoated China to protect their interests as Chinese Malay citizens.

"From 1969 onwards the Chinese actually fought to preserve their culture, heritage and... education," said Jadryn Loo. The 1998 anti-Chinese riots in Indonesia reinforced the sense of insecurity. But an emergent China could change all that, particularly if Malaysia's Chinese community can act as a bridge to the new big boy on the block. "We will feel much safer, and in fact we will feel much [more] important when China emerges as a superpower," said Jadryn Loo.
Jonathan Kent, Chinese Disaspora: Malaysia, BBC News Online, March 3, 2005. We return, in a sense, to an old fashioned approach to multi layered citizenship. Formal citizenship becomes merely the beginning of an analysis of political, cultural, ethnic and affective loyalty and affinity loyalties. "Soft" citizenship may become as important as formal citizenship in the coming century. In that respect China may be pointing the way to a different sort of future. But beware, "soft" citizenship can bite. To the extent it becomes a thinly veiled means for bullying less powerful countries through effort to directly reach Chinese ethnics in those states, it smacks of the sort of neo-colonialism that China had traditionally been in the forefront against. To the extent it can proceed only outward--from out of China and not into China, the policy runs the risk of being discredited as another means of exploiting economic power unfairly. That may not be in China's log term interests. But this last point severely affects China's internal security and the balance of its ethnic policies, especially in the Uighur regions. It is likely that were Jia Qinglin's suggestions to come from the mouth of the Kazakh Prime Minister, and directed to the Turkic people's of China, the protests in China would be loud indeed.

Saturday, September 15, 2007

The UnRepentant: Fidel Castro Confronts Cuban Globalization

I have suggested the ways in which Cuba has been moving toward an embrace of a Chinese style engagement with globalization. That engagement has put the armed forces of Cuba--the Fuerzas Armadas Revolucionarieas (FAR)--under Raúl Castro's leadership, at the forefront of a movement to reorder the foundations of Cuban economic organization without substantially affecting the "socialist" characteristics of the Cuban Revolution of 1959. That engagement has seen a movement to reordering the state economy from a typically Soviet centrally planned structure, to one that is heading toward corporate organization. Where the relationship between the state and the factors of economic production will transition from that of an owner (effectively a corporate sole proprietor--for that is the essence of centrally planned economies), to one more resembling that between a shareholder (usually a controlling shareholder) and its corporation. See Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism, 14 (2) Journal of Transnational Law & Contemporary Problems 337 (2004).

This sort of change will have great consequences for Cuban economic organization. 

Tuesday, September 11, 2007

The Passion of Larry Craig

"In the Christian West few pious practices are as loved as the Way of the Cross, a devotion which recalls with mindful affection the last stage of the journey that Jesus walked in his earthly life: from when he and his disciples, « after psalms had been sung, left for the Mount of Olives» (Mk 14, 26), until the Lord was taken to the « place called Golgotha, The Skull » (Mk 15, 22), to be crucified and then buried in a garden nearby, in a new tomb hewn out of the rock." Piero Marini, Titular Archbishop of Martirano, Master of the Liturgical Celebrations of the Supreme Pontiff, Office for the Liturgical Celebrations of the Supreme Pontiff, The Way of the Cross: Presentation, July 20, 2007. In the United States, few practices are more sacred or more loved, as those terms are understood in the political universe of this country, than the immolation of a high elected official, denied by his very followers and sacrificed for his sins and ours. Today we are witness to another great sacrifice, we are witness to and participants in the Passion of Senator Larry Craig.

Saturday, September 01, 2007

The Rule of Law, the Illuminati and Other Conspiracies

It has been a mainstay of underground global culture to indulge a taste for conspiracy theories. Founded on presumptions of fidelity to and inversions of the dominant political, cultural, and social religious and ethnic/racial orders, these theories spin out a description of a political economy that parallels and controls the one that appears, as a formal matter, to control human organization. Wherever one happens to be, and who ever one happens to talk–from members of the elite in Washington, to Eritrean born merchants in New Orleans, to shopkeepers in Istanbul, to teachers in England, taxi drivers in Sao Paolo or street performers in Kyoto—the basic understanding is the same. There are two worlds, the one in which ordinary people exist and the other, more powerful and manipulative world that controls everyone for the benefit of some purpose, person or group. Depending on the group said to be wielding power for the maintenance of this secret but embedded governance apparatus, the purpose could be to foist a global government on an unwilling world, maintain the domination and control of ethic/religious groups (the Jewish People tend to dominate the “usual suspects” lists in this category), or of other affinity groups recruited by any one of a number of methods for any number of purposes (among these would be the Masons, the “Illuminati” and perhaps even the Trilateral Commission). While the sociology of such conspiracy theories is interesting—especially for the way in which they tend to both project and invert the deepest fears and strongest socio-political patterns onto the conspiracy—it is to the rule of law aspects of these theories that this essay turns.

One of the more “respectable” wrinkles on the elaboration of this form of conspiracy theory—grounded in notions of layering of power over the perception of power—for the purpose of hegemony and subordination by one group over all others, comes from the intellectual “left.” Its more well developed form comes in the guise of a critique of its great adversary—the rising intellectual schools of the intellectual “right” which seem to be so much in fashion among a certain segment of the elected American elite. Its inverse, an elaboration of “left” leaning hidden conspiracies is not to be underestimated. But they work along the same lines and for purposes of this essay the left conspiracy theory attack will serve to make the point.

The springboard is Lieven De Cauter’s critique (“The Tyrant as Messiah: Messianism and Antinomianism in the Neoconservative Ideology,” The Brussels Tribunal (Sept. 3, 2006)) of the Project for the New American Century, which in its own words is, “a non-profit educational organization dedicated to a few fundamental propositions: that American leadership is good both for America and for the world; and that such leadership requires military strength, diplomatic energy and commitment to moral principle.” Id. Putting aside the “obsession with the Jews” innuendo in the analysis (troubling in its own right), the analysis suggests that the Project for the New American Century is said to be peopled by some of the most powerful individual in American government and in the American intelligentsia, all of who are “Straussians.” The reference, of course, is to Leo Strauss, credited through his work, of stimulating the so-called neo-conservative movement in current American politics. Following the work of a scholar known for her severely critical work of Leo Strauss (Shadia Drury, The Political Thought of Leo Strauss, Revised Edition. New York: St. Martin's Press, (originally published in 1988) 2005), de Cauter suggests a character of the “Straussians” contribution that the great hidden conspiracies that has interesting implications for conceptions of “rule of law” theories.
The political philosophy of Leo Strauss can be summarized like this: the few, the ‘real men’, as Strauss calls them in quoting Xenophon, the philosophers, know the truth: that there are no gods, that there is only one natural right, namely the right of the strongest, the right of the few (to enjoy the pleasure of life and contemplation). These truths are dangerous for the philosophers, for they might be prosecuted, and, more importantly, they are harmful to society. So one has to make a double doctrine: an esoteric one for the few, and an exoteric one for the many. . . This outward face of philosophy (which Strauss calls ‘political philosophy’ –the face philosophy shows to the polis), is, in Strauss’s terms made up of ‘pious lies’ and ‘noble myths’. . . . For Strauss the philosophical elites who know the truth, should tell the gentlemen who are in power the pious lies to uphold in public of God, law, freedom and patriotism. Piety, fear and permanent war are a way to turn the decadence of modernity into heroism and self sacrifice. To avoid decadence, and solve the crisis of modernity, one needs patriotism and religion as believe in the sacredness of morals, of the country and its laws. But the laws are also ‘pious lies’. (The Tyrant as Messiah: Messianism and Antinomianism in the Neoconservative Ideology,” The Brussels Tribunal (Sept. 3, 2006)).

Focusing on the rule of law aspects of this description provides an interesting insight. De Cauter suggests “The ‘problem of the law’ – ‘the difficult relationship between philosophy and the law that Leo Strauss sought to delineate throughout his works’, as Agamben puts it at the beginning of ‘The Messiah and the Sovereign’[27] - is responded: justice is translegal, to be beneficent is to be just, so beneficent tyranny is more just than the rule of law.” Id. (citing Giorgio Agamben, “The Messiah and the Sovereign: the problem of the law in Walter Benjamin,” in Potentialities: Collected Essays in Philosophy (Palo Alto: Stanford University Press, 2000:160-174) at p. 161.

Of course, this exercise in the cultish character of Straussian political philosophy provides the template for all cults of this kind—including the religiously based conspiracies of Christianity and Islam, and those in which one can substitute some one or another neo-liberal, Marxist or other group, for the Straussians who are the object of the description. But whatever the group, law in general, and the rule of law, in particular, appear to play a significant role. On the one hand, the rule of law, as a foundational norm of human organization, is a necessary subterfuge. It is necessary as a means of managing populations. Whatever the form of governance organization chosen—democratic, fascist, totalitarian, theocratic—rule of law concepts (implying a mandatory transcendence of law and the obligation to be true to that transcendence and its commands) serve instrumentally as a narcotic for the masses. Belief in the rule of law is a necessary predicate to the rule of men. On the other hand, the substantive elements of classic rule of law, is necessarily immanent. It is the elaborated application of the will of whatever elite is said to rule beyond the veil. Yet, at this level, even this immanent rule of law exhibits classical rule of law characteristics—for such a rule by men to be justified, it must conform to the mores and norms of the ruling class. In that respect, these elites necessarily either apply the rule in the normatively required manner or they act illegitimately.

Thus, in effect, conspiracy theories complicate but do not abandon rule of law theories that have come to dominate political thought from the mid-twentieth century. But they also bend rule of law theory to non-democratic ends. Rule of law is thus a means to oppression, to the management (subordination) of people by application of the imperatives of the rule of law, but bent to “bad” ends; that is to ends other than for the ultimate benefit of the governed either in accordance with the expectations, values and will of the governed or in accordance with transcendental principles flowing from “nature” or the “divine.” But it is also the means by which the dominant group—however hidden, must arrange its own internal governance. In this sense, rule of law works the way that it is “supposed” to, but only for the benefit of the governing class.

And this, indeed, provides a useful insight for the current state of global governance, even in the absence of any conspiracies. It suggests the basis in which rule of law societies can govern on the basis of one set of norms internally, while simultaneously governing through an inversion of values externally. Thus, a democratic rule of law society can be at the center of an empire in which subordinated peoples are managed through rule of law systems that as to them may be tyrannical (even if for “all of the best reasons.” But a non-democratic system can do the same—putting forward law as a make for control mechanisms that translate rule of law rules to a different level of governance. The discussion reminds us of the malleability of theory, even universal theories—like rule of law and democracy—to suit the needs of the society that deploys them. It thus suggests that rule of law may be universal in the sense that it must exist at the functional level of governance—but that not every level of governance is legitimately denominated as such. And, indeed, that society makes a fetish of denominating all sorts of levels of governance as such when they are no such things.

There is irony in the consequence, that in their inversion and projection of the world they deny, conspiracy theorists solidify the foundations of rule of law analysis; in their efforts to show rule of law for a sham, they also provide conceptual support for the opposite. Yet, there is also some value in the effort to discredit rule of law theory as a foundational norm set for human organization. While it is clear that rule of law concepts are difficult to avoid--even if limited, as the conspiracy theorists inadvertently suggest, to the community with effective power, it is also true that rule of law assumptions are not "natural" or "inevitable" in all social orders. But this has been well known since the time of Aristotle. Aristocratic governments can be perfectly democratic within the governing group, and brutally repressive in its management of those to whose welfare they are charged with managing. But they need not be. That rule of law--the notion that rule systems can exist either organically (separate from the governmental apparatus) or transcendentally (emanating from a divine source (for example))--is possible at all, at any level, is an insight worth holding onto. That it can exist as a foundation of mass democratic systems is also likely. That it need not, is something that should give theorists pause, especially those inclined to conclude that human society has reached some sort of advanced enough level that humans need no longer worry about the naturalization of rule of law concepts in human organizations.