Sunday, December 30, 2007

Democracy Part VIII: Aristocratic Democracy and the Pakistan People's Party

On of the great things about democracy, we are told, is how it opens the avenues of political power to all members of the polity. Unlike aristocracies, monarchies or dictatorships, democracy (in whatever form practices) permits any citizen to strive for the highest elective offices of the state apparatus. Any girl can hope to grow up to be the President of the United States or the Prime Minister of Israel or Pakistan. Our political theory reinforces the notions that win or lose, even the most lowly may seek the highest public office unimpeded by the detriments of low birth, status, despised religious beliefs, or the like. The English tell us that “Democracy is a system of government in which the whole population is engaged. It can take many different forms, depending on local culture, society and history. There is no single, ideal model. However, genuine democracies have common features, and the characteristics listed below are generally considered to be essential before democracy can be said to be genuine.” (United Kingdom Foreign and Commonwealth Office, Human Rights, Democracy and Good Governance). Two of the named characteristics are the right to vote in elections and the right to run for public office.

Conversely, theocratic constitutionalism is disparaged for exactly that reason—not all members of the polity can aspire to the highest offices in the land—especially where women or people belonging to tolerated faiths are effectively disabled from such aspirations. It governs some pause, for example, that the Copts of Egypt are effectively precluded from high office in Egypt (Hassan 2003, ; Springborg 2003, 192), or Bahais in Iran (Marshall 2007). The Americans, for example, tell us that “All modern democracies hold elections, but not all elections are democratic. Right-wing dictatorships, Marxist regimes, and single-party governments also stage elections to give their rule the aura of legitimacy. In such elections, there may be only one candidate or a list of candidates, with no alternative choices. Such elections may offer several candidates for each office, but ensure through intimidation or rigging that only the government-approved candidate is chosen. Other elections may offer genuine choices--but only within the incumbent party. These are not democratic elections.” (U.S. Department of State, What is Democracy, Elections).

But the reality, even in the most open societies, is slightly more complex. That reality was brought to the forefront today on the announcement by the Pakistan People’s Party of its intention to elevate the son of Benazir Bhutto to become President of that Party. (Bhutto's son named as successor, BBC News Online, Dec. 30, 2007). Bilawal, Benazir Bhutto's 19-year-old “will be a titular head while he finishes his studies at Oxford University.” Id. “Ms Bhutto's widower, Asif Ali Zardari, who will run the party day-to-day, said it would contest upcoming elections.” Id. It appears that Ms. Bhutto had willed the leadership to her husband, but he demurred in favor of his son. “Another senior party official, vice-chairman Makhdoom Amin Fahim, said Ms Bhutto had named Mr Zardari as her successor as party chairman. But he said Mr Zardari had turned it down in favour of his son - a decision he said the party leadership had endorsed.” Id. It seems that everyone wins with this choice. “At 19, Bilawal is legally too young to stand for parliament. And his father has been repeatedly accused of corruption - though he denies the charges and has never been convicted in court. Mr Zardari said party vice-chairman Mr Fahim would probably be its candidate for prime minister.” Id. Father, son and faithful second in command all reap the rewards of family ties or loyal service to the former head. Democracy, and party politics is well served.

The rule of law in a democratic state is deepened in a way peculiar to the 21st century. There seems to be an aristocratic principle at work within political parties. Political leadership is reserved to the families of founders or their retainers. Common party members serve, but know their place, a place formally written into the unwritten rules of party membership. Yet political parties themselves serve as the institution through which populist politics is managed within Pakistan. In that sense, the common party member is the ultimate object of party loyalty and the need to keep that member enthusiastic the ultimate goal of any party leadership. But this is not unique to Pakistan. The Bush and Kennedy families in the United States, for example, have both provided powerful sets of political dynasties which functions substantively in the for of aristocratic governance all the while observing the forms of democratic politics. Some Marxist States appear to have refined the aristocratic principle to a fine point. North Korea provides an excellent example of an aristocratic Marxist Leninist state—and proof that contradictions in terms are quite viable in the political sphere. There are other examples.

Democracies, at times, thus seem to move simultaneously to both aristocracy and populism. Thus, democracy in the 21st century indeed appears to describe a system in which all people participate. But not all people participate equally. Nor may all people aspire to such equal participation. For leadership positions, family, status, and other marks of privilege separate those destined for leadership from all others. In this respect, the English are right—cultural differences produce variation in the measure of status and privilege. But in all cases, the results are the same—only some people in democracies are destined for leadership—and the qualifications for that leadership can be more a matter of birth and status than of talent. Perhaps that is what the Americans mean by representative democracy, the construction of a system in which two classes of citizens, those who are destined to lead and those who are destined to chose which group of leaders to follow. The official explanation thus veils as much as it reveals: “Today, the most common form of democracy, whether for a town of 50,000 or nations of 50 million, is representative democracy, in which citizens elect officials to make political decisions, formulate laws, and administer programs for the public good. In the name of the people, such officials can deliberate on complex public issues in a thoughtful and systematic manner that requires an investment of time and energy that is often impractical for the vast majority of private citizens.” (U.S. Department of State, What is Democracy, Defining Democracy). Representative democracy provides incentives to a division of political classes into castes—an aristocratic leadership caste in which power is passed along by ties of blood or connection, and a common following of a population the management of whose political expression is the object of the aristocratic leadership caste. The elevation of Bilawal Bhutto to the leadership of the Pakistan People’s Party evidences the trans cultural aspect of this form of democratic organization in the 21st century.

There are rule of law implications for this casting of democratic organization. On the one hand, it might suggest that the trend toward formalism—the strict adherence to particular rules in form but not necessarily in effect, continues unabated into the 21st century. As long as the forms of equal opportunity and equality before the law is observed, the reality of strict deviation in fact makes no legal difference. Rule of law, then, especially as understood in its constitutional sense, might be robbed of its substantive element. It is this sort of strict separation between the forms of governance and their effect that might be said to have maintained the formal constitution of the current Pakistani government as both legitimate and democratic—until the principal stakeholders found both monikers inconvenient. Again, the Americans explain that “No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.” (U.S. Department of State, What is Democracy, The Rule of Law). But the realities of constitutional governance—at once both aristocratic and demagogic—suggest a set of subtleties that belie the simplicities of the usual straightforward applications of democratic theory, and especially democratic theory as a basis for legitimacy of and in law. The recent events in Pakistan—starting with the crisis of the Musharrif government, the interference of foreign powers in that crisis, the machinations of Benazir Bhutto seeking to negotiate her way (and that of her party) into an accommodation with the current regime for an eventual takeover (through the appropriate exercise of the franchise by Parry supporters after appropriate instruction), the intervention of that other powerful stakeholder (outsider Islamist parties) through the political use of murder, and the succession of the mother by the son—all suggest the contours of democratic governance in this century. The great issues of 17th century political governance appear to be with us still. (Backer 2008). And it also suggests that Aristotle’s notions of politics might become a more complex matter in this century—it might be possible to develop multiple systems of governance simultaneously in a way that Aristotle might not have been able to conceive. (Aristotle).

Reference List:

Aristotle, Politics (Benjamin Jowett, trans, 350 BC).

Larry Catá Backer, Symposium: Law and the State in the Transnational Legal Order: Reifying Law: Understanding Law Beyond the State, 25 PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2008) ( God(s)OverConstCLEAN11-26.pdf).

Bhutto's son named as successor, BBC News Online, Dec. 30, 2007 available

Sana S. Hassan, Christians Versus Muslims in Modern Egypt: The Century Long Struggle for Political Equality (Oxford: Oxford University Press, 2003).

Paul Marshall, Murder With Impunity, Iran Targets the Baha’i Again, The Weekly Standard, Volume 013, Issue 08, Nov. 5, 2007, (accessed Dec. 30, 2007).

Robert Springborg, An Evaluation of the political System at the End of the Millennium, in Egypt in the 21st Century: Challenges for Development 183 (Mohamad Riad El
Ghonemy, ed., London: Routledge, 2003).

United Kingdom Foreign and Commonwealth Office, Human Rights, Democracy and Good Governance, available

U.S. Department of State's Bureau of International Information Programs, What is Democracy, available at

Sunday, December 23, 2007

Nehru Inverted: Building a Model for Theocratic Constitutionalism in India.

People have sometimes looked to India as an example of the possibility of constructing a multi-ethnic, multi-lingual, and multi-religious state from out of a collection of culturally related peoples. Europeans, in particular, have been looking to pluralist, multi-ethnic states, other than the United States, to overcome current objections to a European state based on the “no demos” idea. (Mancini 2000, 60) (looking to the example of India and South Africa for multi-lingual, multi-ethnic democratic states). Elsewhere, I had once suggested that there has emerged within Asia an acceptance of state creation on the basis of democratic participation within a pluralistic polity. If Europe needed a model for the formation of a nation from out of a large group of related but politically separate communities, communities separated by language, religion, tradition, race, and traditions—it needed to look no further than the modern federal Republic of India. (Backer 2002).

In 1947 as India gained independence, most of the world questioned whether the new Indian state could survive. (Das 1992, 135). Indian nationalists—led by Mohandas Gandhi and Jawaharlal Nehru—aimed to unite British India and 562 princely states into a secular and democratic state. (Hardgrave 1993, 54-68). The new “Indians” spoke more than a dozen major languages and belonged to a multitude of religions. (Id.). European views regarding a nation of India were best characterized by John Strachey’s declaration, “there is not, and never was an India, nor ever any country of India, possessing according to European ideas, any sort of unity, physical, political, social or religious; no nation, no ‘people of India’ of which we hear so much”. (Strachey 1885, 5). Judging from the 19th century British and French models, India possessed none of the characteristics of a nation. The new nation lacked a common language, a shared historical experience, a common religious tradition and racial homogeneity, all of which were thought to be prerequisites for the formation of a nation. (Embree 1990, 61).

Early nationalists asserted that a national unity could be established whether it be through religion or secularism. The foremost Indian nationalists—Gandhi and Nehru—disagreed sharply over whether India’s national identity should be built around religion or the establishment of a purely secular state. (Chandra 1988, 522-524). Both of these Indian nationalists established secularism as a basic component of the nationalist ideology. Both Nehru and Gandhi believed that the objective of unification of the Indian people could only be realized by taking into account regional, religious, caste, ethnic and linguistic differences. While both leaders believed in the establishment of a secular state, they envisioned very different frameworks through which this vision would be realized.

Gandhi envisioned a role for religion in the new India and utilized religious symbolism in his campaign for independence. Gandhi refused to divide religion from the political realm and strove to refute the colonial charge that religion must keep India divided. (Khilnani 1997, 164)). Utilizing religious symbols that allowed him to be viewed as a religious saint among many of India’s religions (although the symbols were predominantly Hindu), Gandhi created an Indian identity based on swadeshi, a patriotism based on a reverence for every day India. (Id.).

While Gandhi’s Hindu-oriented freedom campaign brought independence to India, it was Nehru’s vision of secular state that lay the foundation of the new Indian republic. (Alam 1999, 147). Nehru adhered to the establishment of a strict secular Indian state. Nehru rejected European paradigms of a national identity and instead believed that an Indian identity could only emerge within the institutional and territorial structure of a state. “Nehru believed that an Indian identity could emerge only within the territorial and institutional frame of a state. A specifically Indian compromise was needed, and he saw strengths in this. That compromise was outlined in the practical adaption, after 1947, of the state into a distinctive model shaped by Nehru’s understanding of the Indian past: a model committed to protecting cultural and religious difference rather than imposing a uniform ‘Indianess’.” (Khilnani,1997, 167).

Nehru thus dedicated himself to the formation of an Indian identity, which protected religious and cultural differences rather than the imposition of a unitary ‘Indianess’. Nehru managed to create an Indian identity based on democracy versus ethnic, linguistic or religious criteria. (Khilnani,1997, 173). In The Discovery of India, written on the eve of Independence, Nehru characterized India as a place of cultural mixing and “an ancient palimpsest on which layer upon layer of thought and reverie had been inscribed, and yet no succeeding layer had completely hidden or erased what had been written previously.” (Nehru 1946, 38-39). From 1947 to 1964, Nehru carefully navigated India through the effects of Partition, debates over a national language and an increased push for states rights. (Khilnani 1997, 178-79).

Nehru ended his tenure as Prime Minister in 1964 but the Congress Party continued as the primary political party until 1996. However, the political landscape began changing considerably since the late 1980's and early 1990's when India witnessed a resurgence of politically organized Hindu nationalism. (Jaffrelot 1996, 1). Many have argued that Nehru’s model of secularism assisted the rise in Hindu nationalist sentiment. (Khilnani 1997, 183). Nehru and the founding generation sought to use a spec ific, ethnically based federalism as the tool through which unity and integrity could be maintained in a complex and multilayered plural entity. Muni 1996, 188). Starting in 1953, Indian federalism was reorganized on a linguistic basis. As the Commission Constituted to Reorganize States in the Indian Federation explained: “Linguistic homogeneity provides the only rational basis for reconstituting the state, for it reflects social and cultural pattern of living obtaining in well-defined regions of the country.” (Muni 1996, 185). Thus, early on, the use of language as a proxy for socio-cultural difference, and the embracing of the assumption that these linguistic differences were territorially based drove Indian federalism. Yet, the “elaborate structure of power devolution has combined with the linguistic basis of federal unity to facilitate the management of cultural diversity in India and help mitigate pulls toward separatism and disintegration.” (Muni 1996, 190).

At the center of this new religious nationalism is the Bharatiya Janata Party (BJP), the foremost Hindu Nationalist party in India. The nature of that nationalism is nicely crystallized in the BJP’s statement that “It has nothing against Muslim Indians - as distinguished from Muslim invaders. Its position on this issue has all along been: "Justice for all and appeasement of none". But it has no doubt that we were and are a Hindu nation; that change of faith cannot mean change of nationality.” (Bharatiya Janata Party Gujarat, Backdrop, Founder, Ideologue).

The symbolic and precipitating event in the rise of modern Hindu consciousness, and the construction of Hindu nationalism, can be attributed to the controversy surrounding the Babri Masjid in Ayodhya. During the Mughal era, Emperor Babur constructed the Babri masjid (mosque) at the site revered as the place of Lord Ram’s birth. Ram is one of the central Hindu deities in Vedic Hinduism. Hindu theology tells that Ram was born in the town of Ayodhya in modern-day Uttar Pradesh. (Khilnani 1997, 52-54).

Since independence, Hindu nationalist parties have lobbied for the destruction of the Babri Masjid and construction of the Sri Ram Mandir temple. Finally, in 1992, Hindu nationalists destroyed the Babri Masjid. The ensuing riots killed thousands of Indian Muslims and prompted a surge if Hindu nationalism. (van der Veer 1996, 253-54 ). The Babri Masjid-Sri Ram Mandir confrontations continue through 2002—yet they do not serve as any indication that India will tear itself apart. Throughout the early 1990's the BJP had made small gains in national and state-wide elections and in mid-1996, the BJP won the national election. (Ludden, 16-17). However, since the early 1990's the strong tide of Hindu nationalism has weakened. After the 1993 election, the BJP relied less on ethnic-religious mobilization and focused more on social and economic issues. (Jaffrelot 1996, 533). During the late 1990's, in an attempt to widen their electoral base, the BJP modified many of their positions especially regarding language.

In the early 1990's, the BJP campaigned under the slogan of ‘One Nation, One People, One Culture’ (BJP Election Manifesto 1998). It was reported that this amounted to a pledge to remake India into a Hindu state by promoting the Hindi language, re-writing Indian history to exclude Mughal history and a general promotion of Hindu culture. Education initiatives stated that, “Curricula be Indianised and spiritualised and emphasise the teaching of Indian philosophy, including the Vedas and Upanishads in higher education. Sanskrit be made compulsory.” (Baweja 1998, 17).

One gets a sense of the nature of the difference in historical emphasis when one reads the Bharatiya Janata Party’s understanding of the historical context of which it forms a modern expression.

History is the philosophy of nations. And the Sangh Parivar has a very clear and candid conception of Indian history. Here was a great civilization whose glory spread from Sri Lanka to Java and Japan and from Tibet and Mangolia to China and Siberia. While it weathered the storms of Huns and Shakas and Greeks it wilted before the Islamic storms of the Turks. However, a 1000-year resistance saw this country bloodied but unbowed. Its civilization survived through the heroic efforts of the Vijayanagar Empire and of Shivaji, Rana Pratap and Guru Govind Singh and countless heroes and martyrs.

(Bharatiya Janata Party Gujarat, Backdrop, Founder, Ideologue). Whatever the reality of the rewriting of history, it was clear that BJP rejected traditional Indian ethnic constitutionalism.

In the name of "secularism", the Congress and the United Front parties have shamelessly pandered to communalism and indulged in "vote-bank politics". As a result, members of the minority communities have been reduced to nothing more than numbers to be played with at the time of elections. While these parties have gained, the minorities have lost-as also has India. The minorities have been cynically used for the purpose of garnering votes these past 50 years, but their socio-economic problems have remained unattended. The true meaning of "secularism", equal respect for all faith-sarva panth samadar- has been perverted by the pseudo-secularists into appeasement of regressive elements. (BJP Election Manifesto 1998, chp. 9).

More recently, however, the BJP has dropped most of their dominantly Hindu nationalist policies in place of social, economic and defense policies that encompass a wider spectrum of the Indian populace. (BJP, NDA Agenda for Development, Good Governance and Peace Manifesto 2004) Yet that is still done within the context of a sense of the universal application of a Hindu worldview, Hindutva, as a cultural rather than as a religious matter.

The BJP draws its inspiration from the history and civilisation of India. We believe that Indian nationhood stems from a deep cultural bonding of the people that overrides differences of caste, region, religion and language. We believe that Cultural Nationalism for which Indianness, Bharatiyata and Hindutva are synonyms -- is the basis of our national identity.

Contrary to what its detractors say, and as the Supreme Court itself has decreed, Hindutva is not a religious or exclusivist concept. It is inclusive, integrative, and abhors any kind of discrimination against any section of the people of India on the basis of their faith. It rejects the idea of a theocratic or denominational state. It accepts the multi-faith character and other diversities of India, considering them to be a source of strength and not weakness. It firmly upholds secularism, understood as Sarva Pantha Samabhav (treating all faiths with respect).

However, the BJP unflinchingly holds that differences in faith cannot challenge the idea of India as One Nation or undermine our millennia-old identity as One People. This is why, we rejected the two-nation theory on the basis of which our Motherland was tragically partitioned in 1947. Thus, Cultural Nationalism is the most potent antidote to communalism, divisiveness, and separatism of every kind, and a guarantor of our national unity and national integration.

(Bharatiya Janata Party, Vision Document – 2004). This is an elaboration of the notion of Cultural Nationalism within Hindutva (BJP, BJP Philosophy : Hindutva (Cultural Nationalism)) already declared in the 1998 Manifesto (BJP Election Manifesto 1998, chp. 2 (“Our nationalist vision is not merely bound by the geographical or political identity of Bharat but it is referred by our timeless cultural heritage. This cultural heritage which is central to all regions, religions and languages, is a civilizational identity and constitutes the cultural nationalism of India which is the core of Hindutva. This we believe is the identity of our ancient nation "Bharatvarsha"”)). India, it seems, will not be unmade, despite her history and traditional divisions. Yet India also serves as testament to the power to remake or create a national consciousness even where cultural, linguistic and religious difference are as great as those traits that these communities share in common.

It is with this in mind that one might better understand the tensions inherent in the recent election results in Gujarat. (Wax 2007). It appears that the BJP has just won an election in that crucial diverse Indian state. “It marks a big victory for controversial right-wing Chief Minister Narendra Modi, who is credited with pursuing successful economic policies.” (India's BJP wins Gujarat election, BBC News, Dec. 23, 2007). But Mr. Modi has been accused of supporting 2002 riots in that province that resulted in the death of more than 1,000 Muslims. (Wax 2007). “Modi hails from the Bharatiya Janata Party, or BJP, and the race is being closely watched as a test of the party's Hindu nationalist ideology at a time when India's importance on the global stage is growing. It is also being watched as an indicator of the BJP's strength before general elections scheduled for May 2009.” (Wax 2007). Nevertheless, “The BJP won 117 out of 182 seats in the Gujarat Legislative Assembly, with Congress winning 59 and six seats going to the smaller parties, results from the Electoral Commission of India showed. It is the fourth consecutive BJP election victory in Gujarat.” (India's BJP wins Gujarat election, BBC News, Dec. 23, 2007).

The Indian elite is unhappy about this. "If Modi wins again in Gujarat, it puts a dent in India's commitment to diversity," said Shiv Visvanathan, a professor and analyst who tracks the chief minister. "It further polarizes society. India has the world's second-largest Muslim population, and it will send shivers when he wins. Modi's never even apologized to the Muslims for riots. A lot of people admire that, and he embodies Hindu pride." (Wax 2007). Most fault him for playing the religion card to get elected in 2002 in the wake of the terrible riots in that province. “"His constant refusal to discuss 2002 and insisting that this is all about development is really an order for silence," said Yogesh Chandrani, a Gujarati anthropologist. "So there is no public discussion of the prejudice against Muslims or the violence that occurred or the fact that an entire section of society is marginalized. The thing is, the middle class has fallen in line."” (Id.). And this elite should be wary, since BJ stands against everything at the foundation of the construction of the current Indian state apparatus. But so are the apparatchiks within the American state apparatus. Modi had been “denied a visa by the United States for "severe violations of religious freedom."” (Wax 2007).

Guilt by association has become a great measure of American policy, unless it suits us to look the other way. And when it comes to Hindu activism all the more so. “Modi was once a young member of the Hindu nationalist Rashtriya Swayamsevak Sangha, or RSS, a member of which killed Mohandas K. Gandhi. After the riots, Modi won a landslide victory in 2002, tapping into long-festering tensions between Muslims and Hindus, human rights experts said.” (Id.). But Modi has come a long way, at least when it comes to media projection. “Modi speaks only about development, rarely mentioning the religious tensions that once got him elected. India Today magazine called this change the "most significant total transformation of a political leader in Indian politics."” (Id.).

It is no surprise that opinion varies by affiliation—both religious and status quo. “To his critics, Modi is a dangerous leader who stood idle during weeks of mob violence, known as "Gujarat's pogroms" in the Muslim community.” (Wax 2007). Indeed, “Mr Modi has been accused of failing to protect Muslims in the riots, which claimed the lives of 1,000 people.” (India's BJP wins Gujarat election, BBC News, Dec. 23, 2007). On the other hand, “to his admirers, Modi is a Hindu hero of machismo, especially for the middle class. He's religious, business-friendly, socially conservative, outspoken against affirmative action for Muslims and other minority groups, and tech-savvy.” (Id.).

And, indeed, it is Gujarat’s Muslim community, about 9% of the population, that feels the pinch of the BJP’s Cultural Nationalism policies. One report quoted a member of that community: “"I feel like a caged animal on display," said Mohamed Salim, a former rickshaw puller who witnessed the mobs killing his friends and neighbors in 2002. "The politicians, the human rights activists and the government all come to look, and nothing ever changes. There is no justice for Muslims in India, especially now. And no hope for the future."” (Wax 2007). Indeed, feelings run hot in this border province. “For victims of the 2002 riots, a Modi victory would be just one more symbol of injustice. "Since there is no justice and people are still voting for Modi, we are ignored, and we Muslims can never trust them," said Niaz Bibi, 50, a mother of three whose home was burned by Hindu mobs in 2002. "All of those who burned my house had been nourished by meals in my home. We used to be friends and neighbors. That's not the India I know now."” (Id.).

But it is a curious thing for religious people to speak of prejudice in an age and place where people are otherwise comfortable with the importance, even the predominance, of religion and religious values as the centerpiece of state creation. Consider, for example, that under American tutelage, the state of Iraq has, in some respects, enacted in its constitution the central elements of the more radical version of the BJP’s platform for transforming India, but without even the equality protections for religious and ethnic minorities in the state. (Backer, 2007). Religious transnational constitutionalism is now respectable. Its consequences, in terms of the excesses possible where populations are polarized rather than taught mutual toleration, is readily apparent in Gujarat. But it is wrong to point the finger at Hindu nationalism. That expression, even in religious terms, can hardly be considered on a par with that in neighboring countries neither known for their religious toleration nor sympathy for cultural diversity. In many respects, the BJP represents a benign version of a possible future of transnational constitutional orders whose framework has been constructed by te Iranians and the Americans in Afghanistan and Iraq. It is hardly fair to complain that what is appropriate in Muslim majority states is somehow inappropriate in Hindu majority states. . . . or in Christian or Jewish majority states. For those who have had in the construction of this transnational constitutional reality, this consequence may define a new baseline for state construction.

Reference List:

JAVEED ALAM, INDIA: LIVING WITH MODERNITY 147 (Delhi: Oxford University Press, 1999).

Larry Catá Backer, The Euro and the European Demos: A Reconstitution, 21 YEAR BOOK OF EUROPEAN LAW (England) 13 (2002), summary available (accessed Dec. 23, 2007).

----------, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 26 MISSISSIPPI COLLEGE LAW REVIEW – (forthcoming 2007), (accessed Dec. 18, 2007).

Harinder Baweja, Failing the Test, INDIA TODAY, Nov. 2, 1998) at 17.

Bharatiya Janata Party Gujarat, Backdrop, Founder, Idealogue, available at (accessed Dec. 22, 2007).

----------, Vision Document – 2004, Our Basic Mission and Commitments, (accessed Dec. 23, 2007).

----------, Election Manifesto 1998, particular chapter may be accessed at (accessed Dec. 17, 2007).

---------, NDA Agenda for Development, Good Governance and Peace Manifesto 2004, (accessed Dec. 17, 2007).

----------, BJP Philosophy: Hindutva (Cultural Nationalism), (accessed Dec. 23, 2007).

BIPAN CHANDRA, INDIA’S STRUGGLE FOR INDEPENDENCE 1857 - 1947 522-524 (New Delhi: Penguin Books, 1988).



Robert L. Hardgrave, Jr., India: The Dilemmas of Diversity, 4/4 J. OF DEMOCRACY 54-68 (The Johns Hopkins University Press, October 1993).

India's BJP wins Gujarat election, BBC News, Dec. 23, 2007, (Accessed Dec. 23, 2007).


SUNIL KHILNANI, THE IDEA OF INDIA 164 (New York: Farrar, Straus & Giroux, 1997).

David Ludden, Introduction. Ayodhya: A Window on the World, in Contesting the Nation, p. 16-17.


JAWAHARLAL NEHRU, THE DISCOVERY OF INDIA 38-39 (New York: Doubleday, 1946).

JOHN STRACHEY, INDIA 5 (London, 1885).

Peter van der Veer, “Writing Violence” in CONTESTING THE NATION: RELIGION, COMMUNITY AND THE POLITICS OF DEMOCRACY IN INDIA 253-254 (David Ludden, ed., Philadelphia: University of Pennsylvania, 1996).

Emily Wax, In Tense Indian State, A Man for All Hindus Gujarat's Muslims Apprehensive on Election Eve, The Washington Post, Dec. 23, 2007, at A20 (Accessed Dec. 23, 2007).

Saturday, December 22, 2007

On Tony Blair's Conversion to Catholicism and the Religious Character of States

It appears that Tony Blair, the former Prime Minister of the United Kingdom and sometime representative of the Global elite in its perpetual management of the war between the People of Israel and Islam, has left the Anglican Church to embrace the religion of his wife and children--Roman Catholicism. Glen Owen and Nick Pisa, Blair DOES Do God--And Becomes a Catholic The Daily Mail, Dec. 22, 2007; Patrick Hennessy and Jonathan Wynne-Jones, Tony Blair Turns Catholic in Private Ceremony, The Telegraph, Dec. 23, 2007; Garry O'Connor, The Cherie Factor on the Road to Rome, The Daily Mail, Dec. 22, 2007; Vatican Hails Blair Church Switch, BBC News, Dec. 23, 2007. The whole affair has been well known and transpired in slow motion. Blair will be welcomed into Catholic fold via his ‘baptism of desire’, Times Online, May 17, 2007.

The progression from Anglican to Catholic faiths was marked by good manners all around. The Vatican apparatus, which had known of the conversion plans for some time, expressed satisfaction with the event. "One senior Vatican source said: "The Holy Father and the whole of the Vatican are delighted with the news. It is always a great joy to welcome a convert."" Glen Owen and Nick Pisa, Blair DOES Do God, supra. Another paper reported that "Cardinal Murphy O'Connor, who is the head of Catholics in England and Wales, said he was "very glad" to welcome Mr Blair into the church. "My prayers are with him, his wife and family at this joyful moment in their journey of faith together," he said. Chief Vatican spokesman Federico Lombardi said the Catholic church in Rome shared Cardinal Murphy-O'Connor's "satisfaction"." Vatican Hails Blair Church Switch, supra. ""The choice of joining the Catholic church made by such an authoritative personality can only arouse joy and respect," Fr Lombardi added." Vatican Hails Blair Church Switch, supra. Blair's wife was happier still it seems. "His wife Cherie, who, like the couple's four children, is already a Catholic, was her husband's sponsor on Friday night." Patrick Hennessy and Jonathan Wynne-Jones, Tony Blair Turns Catholic in Private Ceremony, supra. " Blair has always privately had plans to convert. It won him approval in the eyes of Cherie Booth and it indicates the depth of her influence over him." Garry O'Connor, The Cherie Factor on the Road to Rome, The Daily Mail, Dec. 22, 2007.

The Anglicans wished him well on his spiritual journey. "
Head of the Anglican church, the Archbishop of Canterbury Dr Rowan Williams, bade farewell to the former Prime Minister with a more ambiguous tribute. He said: "Tony Blair has my prayers and good wishes as he takes this step in his Christian pilgrimage."" Glen Owen and Nick Pisa, Blair DOES Do God, supra. The one fly in the ointment, at least as developed by the media reporting this event almost uniformly, was the sour grapes of a fellow convert--"Ann Widdecombe, the Tory MP who converted to Catholicism in 1993, spoke out about Mr Blair's "delay" in following the same path." Patrick Hennessy and Jonathan Wynne-Jones, Tony Blair Turns Catholic in Private Ceremony, supra. She was quoted as saying: "If you look at Tony Blair's voting record in the House of Commons, he's gone against Church teaching on more than one occasion. On things, for example, like abortion," she said. “My question would be, 'has he changed his mind on that?'" Vatican Hails Blair Church Switch, supra.

Tory MP Ann Widdecombe, who converted to Catholicism in 1993, said: "At the point you are received you have to say individually and out loud, 'I believe everything the church teaches to be revealed truth'. "That means if you previously had any problems with church teaching, as Tony Blair obviously did over abortion, as he did again over Sunday trading, you would have to say you changed your mind. "And I think people will want to know that he did go through that process, because otherwise it will seem as if the church did make an exception for somebody just because of who he is."

Glen Owen and Nick Pisa, Blair DOES Do God, supra. And the Telegraph enjoyed frightening its readers with a reminder that the Church of England has been diminished of late--hit on one side by the rise of evangelical Protestantism and on the other by a resurgence of Catholicism brought over by Catholic citizens of the E.U. from other parts of Europe. Jonathan Wynne-Jones, Britain has Become a 'Catholic Country,' Telegraph, Dec. 23, 2007.

The papers did not report on the reaction of the Jewish, Muslim, Hindu or Buddhist communities of Britain. I am sure they also would wish the man well.
These communities were assessing the effects of this conversion, especially as they might affect their own interests. At least one commentator in Israel viewed the conversion as a positive sign, especially with respect to Blair's work for the Middle East Quartet:

Blair's obvious religious side has long been viewed with suspicion, even hostility, by the largely agnostic or secular British intellectual and media elites. . . . Perhaps that is why, among Western leaders, he has shown the greatest comprehension of and most justified concern about the threat that radical Islam- "an arc of extremism now stretching across the Middle East," in his words - now poses to global civilization, not hesitating to call it the key conflict of our age, a battle of values as much as force. No one hoping to bring peace to this region, including in the Israeli-Palestinian conflict, can do so without that understanding. . . .

In Blair's conversion, a relevant message of faith and politics for the Middle East, International Jerusalem Post, Dec. 22, 2007. But more importantly, Blair's conversion is viewed as pivotal in Israel's efforts to be recognized as a Jewish majority state--the way that the United States is a Christian majority state and Malaysia is a Muslim majority state.
Another particularly ironic aspect of Blair's post-premiership conversion is worth noting in relation to the situation here. Israel's insistence that it be formally recognized as a Jewish state, albeit a democratic one, has been sharply criticized in many arenas abroad, especially in the "chattering classes" of Blair's native England, as some kind of outdated, even primitive religious nationalism. . . . When Israel insists on its right to be recognized as a Jewish state in any final-status agreement with the Palestinian, at least Tony Blair should understand all too well that there is nothing exceptional for any democracy - even the oldest one - to insist that religious heritage still be a major part of national identity, even in this day and age.

In Blair's conversion, a relevant message of faith and politics for the Middle East, supra. There is a sense, at least among a segment of the Israeli media class, that the conversion is good for those who view the post-Christian secularism of Europe as a threat to national identity. A return to a religious foundation of European state organization might signal a greater willingness to tolerate a religious foundation for democratic state organization for states other than Muslim states. More on this below.

One American commentator has an interesting perspective, one that was raised in the months before the conversion:
Why is Mr. Blair abandoning the Church of England? The answer is probably that, like many Anglicans, he feels as if his native church has abandoned him. A church that is obsessed with the ordination of homosexuals or women has nothing to say on the confrontation of Islam and the West. It has been unable to provide the moral compass essential to a man who aspires to lead his country in a time of war — and a religious war at that.
Daniel Johnson, Blair's Imminent Conversion, The New York Sun, May 18, 2007. In yet another way, it seems that the West is moving closer to a different form of accommodation with religion. Blair provides a personal testament to a socio-cultural movement that has already manifested itself in the way in which modern Western driven constitutionalism is evolving. Religion is more likely to serve as the basis for the moral organization of political life, in ways that had been thought eliminated in in the West. See Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 26 MISSISSIPPI COLLEGE LAW REVIEW – (forthcoming 2007). Under American and UK patronage, universalist constitutionalism has moved from a grounding in secular human rights norms to one based on religious values. The American experiments in universalist theocratic constitutionalism in Iraq and Afghanistan suggests a change in the vectors of governance that represents a sharp turn from the movements dominant since the start of the French Revolution.

Tony Blair's conversion reminds us that religion is again in play in a big way in the construction of global governance. The Israelis understand this in their quest for recognition of the religious character of their state. Iraqis and Afghani Muslims have profited from it in the less controversial recognition of the Islamic character of those states. The Malays have understood its practical significance in the construction of their ethnic identity in religious terms (Malay Constitution Art. 160 defining Malay as "
a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom "). Those who ignore this development will do so at their own peril.

Friday, December 21, 2007

The Surveillace State: Monitoring as Regulation, Information as Power

In many ways, the idea of the all powerful regulatory state has been passing into history. In its place is arising the monitoring state--a political organization whose functioning depends on its ability to observe, and through observation, manage the behavior of the community of its members, all of whom can be expected to behave because they have internalized the idea that they are constantly watched. Thus, modern government is increasingly built on the twin pillars of observation and management. And the critical element of this system is the ability to produce in the inhabitants of the monitored state the idea that they are constantly watched. The goal, of course, is to produce a state of constant self policing, so that even when the observation ceases, the idea of observation is motivation enough. See Michel Foucault, Security, Territory, and Population, in: MICHEL FOUCAULT, ETHICS: SUBJECTIVITY AND TRUTH, (Paul Rabinow, ed., New York: The New Press, 1997:67-71).

This sort of state had been the goal of most totalitarian states especially since the rise of modern democratic theory--power to the people from the French revolution on depended on a power of observation, and by observation control. The goal of constant observation had been close to the heart of most totalitarian states since, tough technology and socio-cultural resistance made its successful implementation difficult, even in the great Nazi and Soviet States of the mid 20th centuries. Ironically enough, it is only in an age of globalization--when political states appear to ave ceded some authority to both transnational and private organizations, that the goal of a self managing state of constant observation might be achieved.

Elsewhere, I have suggested that surveillance represents a complex of assumptions and objectives beyond mere information gathering or observation. Surveillance serves both instrumental and substantive purposes that affect the power relationships among states, economic entities and individuals. It is both technique and the reification of norms shaping the specific character of the gaze. Surveillance is both ministerial—the gathering of information—and administrative—the elaboration of judgments of the importance of the actions of or individuals observed. Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007).

Surveillance is one of the critical mechanisms of this expansion of private power into what had been an exclusively public sphere. Increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the conduct and activities of a host of actors. It has also come to serve public bodies as a substitute for lawmaking. Surveillance is a flexible engine. It can be used to decide what sorts of facts constitute information, to determine what sorts of information ought to be privileged and which do not matter, to gather that information, to empower people or entities to gather information, to act on the information gathered. In its domestic form it can be used to assign authority over certain types of information to private enterprises and then hold those enterprises to account on the basis of the information gathered. In its transnational form it can be used to construct a set of privileged information that can be gathered and distributed voluntarily by private entities on the basis of systems created and maintained by international public or private organizations as an alternative to formal regulation and to provide a means of harmonizing behavior without law. Together, surveillance in its various forms provides a unifying technique with which governance can be effected across the boundaries of power fractures without challenging formal regulatory power or its limits. Still, its necessary privatization also complicates distinctions between private and public institutions and between assertions of private (market or personal welfare maximizing) and public (regulatory or stakeholder welfare maximization). Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007).

Consequently, the move toward a state of constant observation may be even more ironic in that it appears that the great democracies of Western Europe may be the first to actually implement the sort of idealized self managing and constantly monitored state as a matter of public law. In a story recently reported in the Daily Mail, Steve Doughty, Big Brother Britain: How much do you earn? Are you gay? Town Hall chiefs have been ordered to find out, Daily Mail, Dec. 20, 2007, it appears that the English will be leading the way to the sort of total information society that people have been anticipating in the West since the start of the current campaigns against Islamic global terror. " Every town hall has been ordered to send out surveys demanding local residents' personal information and opinions. The forms will ask householders to give details of their children, mortgage, ethnic background, religion and sexual orientation. " Big Brother Britain, supra.

The rationale for the program is essentially regulatory. "According to a consultation paper distributed by Communities Secretary Hazel Blears, the justification for the survey is that it will let the Government know if councils are hitting scores of new targets imposed on them in the last six months." Big Brother Britain, supra. It represents a necessary technique for the social engineering represented by the multiple regulations to be managed through this program of observation. But it, more importantly, appears to be a way for the central authorities to monitor the Councils themselves. A hierarchy of surveillance is thus proposed, with the ultimate power--to determine what facts must be gathered, from whom and to what ends--to be preserved to the highest authorities. And it is to be done on the sly. "Ministers have even given instructions that local councils must try to disguise their involvement in the survey to avoid attracting criticism." Big Brother Britain, supra.

The regulatory nature of the questions themselves are evident from the forms they take:
Instead, it solicits information on whether people think local parents are controlling their children's behaviour properly and whether different ethnic communities in the area are getting on with each other. Questions on ethnicity and sexuality are intended to be used in Government initiatives to promote greater numbers of local councillors from minority groups.
Big Brother Britain, supra. The questions themselves suggest the standards of behavior expected. And people might well use the surveys as a measure of the both the "appropriate" universe of responses and consequentially the approved behavior to be followed. The certainty of observation supplies both standard and enforcement. Both aspects of this form of regulatory surveillance can also be gleaned from the context in which information is acquired: "Unlike the ten-yearly national census, it will not be legally compulsory to fill in and return the form. However, those who do not comply are likely to be sent multiple reminders." Id. Observation is constantly reinforced. Even those who fail to respond will be reminded constantly of the techniques of observation. They will understand that though they have not complied, their neighbors likely have, and that cumulatively, community standards and expectations might change to conform to the values expressed in the information gathering devices.

The information gathered will not be monopolized by the state (though the state will certainly use the information--or the power to gather it--for its own regulatory ends). Instead, all information submitted "will not be kept confidential." Big Brother Britain, supra.
Information provided for the new council survey will not be protected by basic confidentiality rules. The Department for Communities and Local Government has told town halls there are no guarantees of privacy and that personal data gathered in the questionnaires can be disclosed to third parties. Although respondents are not asked for their names and addresses on the forms, town halls are likely to keep this information with the completed survey data on their computer systems.

Big Brother Britain, supra. It appears anyone with a power to seek information might well profit from the use of the survey information. That serves to deepen the instinct to comply with the behavior norms privileged by the questions--no one wants to be found out as a non-conformist, the social and economic costs might be too great. As a consequence, the state can just sit back and watch society do its work for it. And indeed, there would be a great temptation not only for stakeholders to acquire the information, but for the great media enterprises--like the Daily Mail and its competitors--to make use of the information as a means of monitoring government and through government, the people). There is nothing more efficient than self implementing systems.

Steve Doughty in his report notes that "Local Government minister John Healey said the New Place Survey "will be a significant tool for councils and local agencies"." Big Brother Britain, supra. That it certainly will. But the way in which that tool will be used is profoundly more significant than is suggested by its appearance. No mere survey, government in Britain is deepening its conversion from a political community that governs through law to one that rules through technique. And in that enterprise, government and other enterprises will share a power to mold their relationships with the most important factor in their respective power, authority and legitimacy--the individual.

Tuesday, December 18, 2007

The Global Media and the Scripting of Fidel Castro's Exit

It is a truism of sorts, that the media has been engaging more and more directly in the creation of a reality they can then report as news. Since the late 18th century in the West, the media has been as much an active creator of news as its reporter. We have come to understand, for example, the inevitable shape of the Israel-Palestine settlement, of independence for Kosovo, of the end of (now ex-)General Musharraf of Pakistan, and of the need for the United States to behave differently when it comes to the use of public power over environmental issues.

Now, at last, important elements of the global media have decided that Fidel Castro must go. And they are jumping on his words to help him on his way. One of the leading shapers of global news--the BBC--has now reported that "Cuba's ailing communist leader, Fidel Castro, has raised the possibility that he may never return to the presidency." Fidel Castro Hints at Retirement, BBC News, Dec. 18, 2007. The report related how, "In a letter read out on state TV, Mr Castro, Cuba's leader since 1959, said he had a duty not to hold on to power or obstruct the rise of younger people." Fidel Castro Hints, supra.
Mr Castro's message was delivered during Cuba's main nightly current affairs programme, Mesa Redonda. "My basic duty is not to cling to office, and even less to obstruct the path of younger people, but to pass on the experiences and ideas whose modest worth stems from the exceptional era in which I have lived," it said.
Fidel Castro Hints, supra. The article reminded readers that Castro had relinquished power last year when he became ill and that these important comments come on the eve of elections that will lead to the election of a President for the Republic. Fidel Castro Hints, supra. And, of course, everyone understands the importance of voting. See Larry Catá Backer, Democracy Part IV (Nov. 25, 2007), Democracy Part II (Nov. 16, 2007), Law at the End of the Day.

The article then provided commentary from the usual cast of characters and the BBC's own brand of analysis. First the Americans, providing the usual sort of bland institutional response with the necessary edge of war mongering and interference, a hallmark of BBC coverage of official America (though whether always an unjustified distortion is another matter):
"It's an interesting letter. It's hard to make out what he is saying or what he means," said spokeswoman Dana Perino, quoted by the AFP news agency. "So we're just continuing to work for democracy on the island and we believe that day will come soon."
Fidel Castro Hints, supra. The American view was to be balanced by the view of the person on the street in Havana: ""He has left a solid foundation for us to continue. Even if someone else takes the seat of power, nothing will change," a Havana resident told Reuters news agency." Id. This perspective, in turn was contrasted by that of the the most conservative elements of the Cuban exile community in Miami. That perspective provided the article with the necessary way off center (right) balance, proffered in the form of
scepticism about the statement's actual meaning. Gina Forcellado said she thought the announcement was part of a cynical move by Fidel Castro. "He knows that he's not going to be judged very well by history, so he's trying to correct it," she told the BBC.
Fidel Castro Hints, supra. But the point of view that is meant to influence was provided by the BBC's men in Havana. First, there was a caution: "The BBC's Michael Voss in Havana says there was no indication about how or when the Cuban leader might step down." Id. Second, there was the astute analysis: BBC Americas editor Emilio San Pedro says the letter appears to be a calculated attempt to prepare Cuba's 11 million people for a Cuba without the emblematic revolutionary leader in charge." Fidel Castro Hints, supra. It is not until one gets to the very end of the report that one gets even a whiff of the context in which this story arose. It appears that Castro's "comments came in the final paragraph of a letter dealing with this month's climate change conference in Bali." Fidel Castro Hints, supra.

Well. . . . . . So what was the context in which these few (but important) sentiments were extracted? The statement itself can be found on the official Cuban government website devoted to the writings of Castro (Discursos e intervenciones del Comandante en Jefe Fidel Castro Ruz, Presidente del Consejo de Estado de la República de Cuba). The great bulk of the statement (Reflexiones del Comandante en Jefe. Mensaje De Fidel A La Mesa Redonda. 17 de diciembre del 2007) (in English) was devoted to an analysis of the United Nations Climate Control Conference in Bali. The analysis was evidence that Castro retains his mental faculties. The writing was vintage Castro: It described in some detail what Castro believes to be a complex and highly deceptive and manipulative orchestration of climate control standards meant ultimately to favor the developed states. As he put it--"Everything had been foreseen ahead of time by the NATO allies." (Mensaje De Fidel A La Mesa Redonda, supra). It comes complete with a cast of characters each playing their designated role:

1. The U.N. Secretary General as the spineless absent leader ("The UN Secretary General, faced with the tenacious obstruction opposed by the United States before the 190 representatives who were meeting there, and after twelve days of negotiations, stated . . . that the human species could disappear as a result of climate change. And then he went off to East Timor." Mensaje De Fidel A La Mesa Redonda, supra ("El Secretario General de Naciones Unidas, ante la tenaz obstrucción de Estados Unidos en el seno de las 190 representaciones allí reunidas, y después de doce días de negociación, afirmó el viernes 14, hora de Cuba, cuando ya era sábado en Bali, que la especie humana podía desaparecer como consecuencia del cambio climático. Después se marchó hacia Timor Oriental.")).

2. The evil empire (the United States), which appeared to concede to the demands of the developing world for money, technology transfers and sacrifices from the developed states (but really didn't) The United States extracted a much weaker set of standards and managed to obtain agreement that the next round of talks would be held on American soil (or as Castro put it--"en Hawai, territorio norteamericano" ("in Hawaii, a U.S. territory"). Mensaje De Fidel A La Mesa Redonda, supra.

3. A group of compliant allies--in this case Canada and Japan. "Canada and Japan adhered immediately to the US stand, opposing the rest of the countries that were demanding a serious commitment to curtail the emissions of gases that are causing the climate change." Mensaje De Fidel A La Mesa Redonda, supra.

4. The two faced passive-aggressive former colonial powers trying to be everyone's friend while preserving their privilege:
The theatrical solution reserved for Europe the role of saviour of the world. Brown, Merkel and other leaders of the European countries took the floor claiming for international gratitude. What an excellent Christmas and New Year’s present! None of the eulogists made any reference to the tens of millions of poor people who go on dying of diseases and hunger each year as a result of the complex realities of the present, just as if we were living in the best of all worlds. (A Europa en la teatral solución le reservaron el papel de salvadora del mundo. Hablaron Brown, la Merkel y otros líderes de países europeos pidiendo gratitud internacional. Excelente regalo de Navidad y Año Nuevo. Ninguno de los panegiristas mencionó las decenas de millones de personas pobres que siguen muriendo de enfermedades y hambre cada año dadas las complejas realidades actuales, cual si viviéramos en el mejor de los mundos.)
Mensaje De Fidel A La Mesa Redonda, supra. It is hard to disagree, though perhaps not for the reasons Castro notes. Europe has become the bridge between th United States and the developing world. Its role now seems to be to make the harsh realities of power more palatable to those whose burden is to endure it, while retaining for themselves the privileges of power. Official Europe has, to some extent, become the priestly caste of the global social order--minding the poor but living well.

5. The parade of horribles: in the service of the consumer societies of the developed world all sorts of natural disasters will occur. Worse, the world will applaud the divergence of foodstuffs for the production of fuel. "The industrialized nations share with the United States the idea of turning foodstuffs into fuel for luxury cars and other wasteful practices of consumption societies." Mensaje De Fidel A La Mesa Redonda, supra. ("Las naciones industrializadas comparten con Estados Unidos la idea de convertir los alimentos en combustible para los autos lujosos y otros derroches de las sociedades de consumo."). Ethanol has been personified as a great evil by both Castro and Chavez. See Larry Catá Backer,Fidel Castro, Hugo Chavez, and the Response to the U.S. Brazil Deal on Ethanol Production, Law at the End of the Day, March 3, 2007.

In light of this geo-political realities, Fidel reminisces, he is happy that he had the sense to refuse the 1998 invitation of then Canadian Prime Minister Jean Chrétian to play the kind of games that Castro described in Bali. "I entertain no illusions." Mensaje De Fidel A La Mesa Redonda, supra. ("No albergo ilusiones."). But the problems for the Cuban people remain very real, and the solutions difficult to see.
I strongly believe that the answers to the current problems facing the Cuban society, . . . require more variables for each concrete problem than those contained in a chess game. We cannot ignore one single detail; this is not an easy path to take, if the intelligence of a human being in a revolutionary society is to prevail over instinct.
Mensaje De Fidel A La Mesa Redonda, supra. ("Mi más profunda convicción es que las respuestas a los problemas actuales de la sociedad cubana, . . . requieren más variantes de respuesta para cada problema concreto que las contenidas en un tablero de ajedrez. Ni un solo detalle se puede ignorar, y no se trata de un camino fácil, si es que la inteligencia del ser humano en una sociedad revolucionaria ha de prevalecer sobre sus instintos.").

It is in this context that Castro suggests his own contribution to the future difficulties facing Cuba: "My elemental duty is not to cling to positions, much less to stand in the way of younger persons, but rather to contribute my own experience and ideas whose modest value comes from the exceptional era that I had the privilege of living in." Mensaje De Fidel A La Mesa Redonda, supra. ("Mi deber elemental no es aferrarme a cargos, ni mucho menos obstruir el paso a personas más jóvenes, sino aportar experiencias e ideas cuyo modesto valor proviene de la época excepcional que me tocó vivir.").

This is a substantially different spin than that extracted from the last 3 lines of the letter by the experts at BBC. Compare carefully both the original Spanish with the official Cuban translation and the translation as it appeared in the BBC report. Let me suggest a less simplistic and manipulative reading of the statement--context. The message is important. But not as an indication that Castro means to disappear form the scene. He has no such intention.

However, he has finally made two things clear. First, he will not stand in the way of the Sinification of the Cuban economy (and ultimately the state apparatus, with power shifting decisively to the military). It appears that Raul Castro now has the green light to proceed as Castro reconciles himself to the need for change in order for the regime to survive his death. See Larry Catá Backer,On the Anniversary of the Attack on the Moncada Barracks: Cuba Moves Forward towards its Chinese Future, Law at the End of the Day, July 27, 2007. Second, Castro has given the go ahead for planning of the official succession. Power has already passed. Now the state apparatus will be reordered to prepare the people for its management by the new generation of leaders, who have been vetted over the last several years. We certainly will expect to see more of them and in more prominent positions. But be sure that the changes they will appear to usher is in place now. I expect overtures to Brazil as the wedge into Latin America. It makes tremendous sense both for Cuba and for Brazil. For Cuba it avoids the difficulties posed by Chavez,; for Brazil it permits the current regime to score points domestically while acting as an intermediary to the U.S. and retaining its leadership role in Latin America. But Castro has also indicated his intention to use the Europeans as well, at least for what they appeared to be good at in Bali.

Now this is quite a different story from that extracted by the global media. But I have little interest in hastening Castro's official succession. But Castro has not behaved well. The media had expected him to go. The story of the Cuban struggle in the wake of Castro's passing is ready to be written, but the Cubans are delaying the press. No matter. The press, the the Cuban state, or the Americans, are all adept enough at manging reality. And it is what the masses believe that counts, after all. That is a lessen that as not been lost either on states, or economic enterprises. See Larry Catá Backer,Multinational Corporations as Objects and Sources of Transnational Regulation, Law at the End of the Day, Oct. 29, 2007.

Tuesday, December 11, 2007

Markets in Infants: The Hague Convention on Intercountry Adoptions, National Reform Efforts in Guatemala and Consumerism in the United States

Everything has always been for sale in the global entrepots that serve the master classes of global society--whether they be Western matrons or high ranking members of a nomenclatura, or the scions of plantation cultures in search of new amusements. The difference between this and earlier ages, perhaps, is the ease with with such transactions may occur. As the cost of production and distribution has gone down, the propensity of culture to elaborate and act on its morals increases. Technology, innovation, and the growth of markets (whether or not regulated by the state or some suitable alternative mechanism) has made it possible to indulge the moral senses in ways unimaginable a century ago.

With the exception of the abolition of formal slavery and the emancipation of women, the moral sense of the status and condition of children has undergone a singularly dramatic change. A century ago children where important elements of the labor market. They were valuable for the labor output one could extract from them--parents, siblings, employers, and the state. Producing children could be a burden, but it could also help produce wealth--enough at least for the family or other base economic unit to survive. This has tended to be true in the agricultural sector but became even more important in the industrialization of Europe and the Americas. Yet, the industrialization that made child labor first vital also contributed to its growing irrelevance, as the cost of production in important sectors of the economy decreased. As important, perhaps, the value of children as commodities became greater than the value of children as elements of the labor market.

The sentimental value of children grew as their economic value decreased. By the 1930s in the United States, child labor had been substantially restricted (at least as a formal matter) and baby farming had become an important element of political culture at the national level, producing Congressional inquiries and thunderous calls for regulation. See Viviana A. Zelizer, Pricing the Priceless Child: The Changing Social Value of Children 199-202 (Princeton NJ: Princeton University Press, 1994). National markets in child selling became more and more regulated. The price of babies in the black market in the United States, about $10,000 at the upper ranges in the early 1950s rose to about $25,000 in the mid 1970s. Id. The age of the trophy child had begun in earnest.

There was, of course, a race and ethnic element to this change. Not all children were adoptable. Dark skinned and male children tended to be seen still as fit only for labor though Zelizer notes ethnic variations--Jewish adopters, for example appeared to prefer male to female children and might have adopted for other than sentimental or social status reasons (Id., at 194). But for most people able to afford adoption, pretty little blue eyed girls were prized in the first half of the 20th century. The sentimental cult of the trophy child as the ultimate consumable was well established in the United States well before the Second World War. And that cult depended on the female child, as both proof of the economic independence of the purchasing family and as insurance against the frailties of old age. Id. at 193-194. These trophy children provided a template that has carries over to this day.

By the time globalization became well established in the 1980s, the taste for adoption had changed. First the cost of production and the risk of liability skyrocketed. Second, the nature of status adoption changed as well. Second, there were far less prestige points associated with domestic adoption than of foreign adoption. What better way to show one's social consciousness, to make the world a better place, than to take an infant from some benighted part of the world to offer them the opportunities of the developed world. As one set of prospective adopting parents put it: "One of the reasons we picked Guatemala specifically is that the country has no social welfare system, there are no public orphanages, there is no other place for these babies to go." U.S. Mother Defends Guatemala Adoption, BBC News, Aug. 13, 2007. Given these changes in domestic tastes and expectations, it is not surprising that the infant market went global. Chinese, Eastern European, and then Central American infants became much in demand as the production of fashionable American babies became scarcer. "Almost 5,000 Guatemalan babies were adopted by foreigners in 2006. The UN says most of the children went to the United States, making Guatemala the second largest source of children adopted in the US, after China." Guatemala Tightens Adoption Rules, BBC News, Dec. 12, 2007. American infants that were not suitable for adoption--too old or too "difficult" continued to be passed over.

And, of course, demand affected supply. In a global system in which demand vectors of developed states set the terms for the focus of production, it stood to reason that as demand for babies increased, and the price went up (at least in relative terms), supply would rise to meet demand. In some places, where child limitation policies were in place, it became useful to sell off excess children to permit families to comply with legal restriction on birth production in a way that suited taste. That meant a vast oversupply of orphaned or abandoned female children. In other places, where industrial development was limited, a woman might find that the highest and best use of her body was in the production of babies for export. In many cases, selling children was the only means to raise sufficient finds to survive. One Western adopting family noted that they "don't know the specifics, but I think most mothers relinquish their children because of the extreme poverty and the lack of access to and cultural unacceptability of contraception." U.S. Mother Defends Guatemala Adoption, supra. In some cases developing states either relaxed legislation on restrictions on transnational baby selling, or turned a blind eye. Corruption was never too far from the scene.

There was a lot of money to be made. Sadly, most of did not go to the women producing infants for sale. Instead, repeating an old pattern evident in the United States from the early 20th century (Zelizer, supra) market facilitators tended to take the lion's share of the profit. And the possibilities for exploitation, baby stealing and the like rose as the value of babies increased. But there WAS a lot of money to be made, and virtually all stakeholders--from intermediaries, to lawyers to the state were being cut in. In Guatemala intermediaries were said to earn upwards of $40,000 per infant. See Guatemala Tightens Adoption Rules, BBC News, Dec. 12, 2007.

In this context, political reaction was sure to follow. There are several possible approaches to responding to the commodification of children, and the ethics of feeding the demand of Western families for children from exotic locales. Some states, like Malawi, have made sought to foster national markets in babies at the expense of international markets. See Raphael Tenthani, Courtney Rubin and KC Baker, Human Rights Group Tries to Halt Madonna's Adoption, People Magazine, Oct. 15, 2006. Guatemala has chosen an interesting to reform: cut out the middleman (who extracts the largest value added in the chain of purchases and sales producing an adoption) and eliminate direct profit to the birth parent. "The new law will eliminate mediators, create a federal adoption agency and prohibit birth parents from receiving financial compensation." Guatemala Tightens Adoption Rules, supra. The point, it seems, was to eliminate a certain sort of profiteering. ""We hope to bring an end to these criminal mafias of lawyers and illegal foster homes that have run adoptions in the country," Congresswoman Nineth Montenegro told reporters after the vote." Id. Guatemala, then will substitute one form of profiteering for another. In place of the private system, a state controlled system of adoption, with its set of fees and the like, will serve as the centralized mechanism for markets in infants in Guatemala. And that may increase the transaction costs of foreign adoption.

This was a curious choice. While it is true that the reforms might effectively shift power over the internal market in babies from the private to the public sector, it is not clear that this will solve the problem of the market itself. Women have no financial incentive to produce babies, but neither do they have any incentives to keep them either. Moreover, the Guatemalan state may itself have exposed itself to greater liability abroad--especially in the United States. It is possible that under current interpretations of the federal Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1602-1611 (2000)), Guatemala may find itself without sovereign immunity in cases involving the sale of babies that go bad in the United States. Under the FSIA states, like Guatemala, may not seek the protection of sovereign immunity from its commercial activities. The meaning of commercial activities has been subject to administrative interpretation. The U.S. Department of State has provided a measure of non binding information about the Act in its Foreign Sovereign Immunities Act circular. More importantly, the Supreme Court has developed a standard of interpretation under the Act that may be broad enough to deem the activities of the Guatemalan government as commercial for purposes of immunity. This is especially the case where, as here, the state has merely privatized what had been a private sector industry. See Argentina v. Weltover 504 U.S. 607 (1992); but see Kingdom of Saudi Arabia v. Nelson 507 U.S. 349 (1993). Indeed, the concern of the Guatemalans ought to be greater given some recent activity in the appellate courts that suggest a willingness to interpret the commercial exception to sovereign immunity quite broadly. See, e.g., Guevara v. Peru (11th Cir., 2006 (reward for capture of fugitive). Because the reforms may place Guatemala in the position of market participant rather than market regulator, it may face exposure in U.S. courts. It is not clear that Guatemalan legislators understood this risk as they moved to make points with the media, internal constituencies, demand side states (especially the United States) and that amorphous but powerful global civil society sector with a particular agenda on this issue.

Still, it can be assumed that one hope that this reform will reduce the great ills identified under the old system--women using their bodies for profit by making babies for the export markets, intermediaries profiting from the functioning of an active market for infants, corruption of state officials required to turn a blind eye to aggressive interpretations of law and right. Still, there should be a sense that the reform was done more for show than in the real hope of controlling the infant market. The problem in infant markets is similar to that in the market for illicit drugs--it is driven by demand, And demand is not centered in Guatemala, it is centered in the homes of the middle and upper middle classes in the developed world. But nothing is being done to curb that demand--no substantial efforts are being made to provide adoption of "unsuitable" American babies (or their older siblings), for managing the liability for adoption, the rights of birth parents and the risks to intermediaries. Much of the demand problem is cultural--the value of trophy children are still high. And perhaps this is so for all of the "right" reasons. And the media and media leaders continue to set the example: "Angelina Jolie brought home her fourth child on Thursday from the Vietnam orphanage where he has lived since 2003." Inside Angelina's Adoption, US Magazine, March 15, 2007.

The necessary consequence points to standardization and control from the demand side. And it is in this context, that one can better understand the Hague Convention on Intercountry Adoptions, adopted December 12, 2007 by the United States in the Netherlands, makes sense. "The United States, the world leader in international adoptions, will join more than 70 nations committed to standardizing policies, procedures and safeguards to reduce corruption in the largely unregulated adoption marketplace." Jane Gross, U.S. Joins Overseas Adoption Overhaul Plan, The New York Times, Dec. 11, 2007. The Treaty will permit the United States to federalize intercountry adoptions in a more thoroughgoing fashion.
Each nation names a central authority — here, the State Department — to establish ethical practices, require accreditation for the agencies handling the adoptions, maintain a registry to track complaints and create a system for decertifying agencies that do not meet the standards. In addition, once the treaty is fully put in place in April, parents seeking a visa for an overseas adoption must demonstrate to the State Department that a child has been properly cleared for adoption, that a local placement had been considered, and that the birth parents were counseled on their decision and have signed consent forms. Prospective adoptive parents also must show they are properly trained for what could be a rocky transition.

Id. The focus was clearly on control of global markets in children by changing the practices of demand side stakeholders. “'Americans adopt more foreign-born children than all other countries in the world combined,” said Maura Harty, the assistant secretary of state for consular affairs. “As a Hague Convention country we can — we must — require reform and transparency in some countries or adoptions to the U.S. will stop.'” Id.

The Americans, then, are expected to use their power under the international treaty, to pressure other treaty signatories to comply in ways that would satisfy them. And one of the first targets was Guatemala. Quoting adoption agency employees, the report noted that "the worst problems for adoptions from Guatemala, which has ratified the treaty but has not developed legislation to enact it. The United States has threatened to suspend adoptions from there because of accusations of corruption. Agencies working in countries that have ratified the treaty must be accredited, a process under way in the United States."

Aha! The pieces thus come together nicely. Now it is possible to better understand the context in which Guatemalan reforms were undertaken. Guatemala had to meet its international treaty obligations, and did so in conformity with the requirements and sensibilities of the United States, as the representative of the largest market for Guatemalan children. Guatemala will continue to service the demand for babies for the America market, but now they will do so in conformity with the sensibilities of the United States, as written into their law. Economic realities are thus manifested in this framework. Reform in Guatemala appears to be sourced as much from the outside as from inside. And the shape of that reform may have as much to do with the requirements of the international market, and international market regulatory systems, than it has to do with the desires and choices of the people of Guatemala. See Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order, 17 Berkeley La Raza L.J. 141 (2006).

The substantive norm choice has been made at the international level--the market in children is to be managed, not suppressed. Management power is to shift from private to public institutions. A new layer of oversight is instituted, and with it greater costs and new forms of protections, mismanagement and corruption will arise. Individual states with the desire and the ability to resist the pressure of global demand for premium babies, Malawi for example, may continue to do so. Others default to the international norm. The state, at once more powerful now, is at the same time less free to shape its own internal destiny. And the market in children remains